December 1, 2004 – Page 24 – Electronic Discovery Law

BASF Fina Petrochemicals Ltd. P’ship v. H.B. Zachry Co., 2004 WL 2612835 (Tex. App. Nov. 18, 2004)

Dec 01 2004

Key Insight: Court awarded non-party its costs of production, but ruled that non-party was not entitled, under either Tex. R. Civ. P. 205.3 or 176.7, to recover attorneys’ fees incurred in responding to subpoena, noting that non-party obtained legal advice to protect its own interests, not to facilitate compliance with subpoena

Nature of Case: Construction litigation

Electronic Data Involved: Electronic data

Armstrong v. Amstead Ind., Inc., 2004 WL 1497779 (N.D. Ill. July 2, 2004)

Dec 01 2004

Key Insight: Court denied plaintiffs’ motion for sanctions stemming from defendants’ failure to disclose various relevant documents until after the close of fact discovery and plaintiffs’ expert disclosures, though defendants provided the material to their experts; instead, plaintiffs’ experts would be allowed to supplement their reports to address the belatedly-produced material

Nature of Case: Class action alleging violations of ERISA

Electronic Data Involved: Spreadsheets and reports

Arista Records, Inc. v. Sakfield Holding Co. S.L., 314 F. Supp. 2d 27 (D.D.C. 2004)

Dec 01 2004

Key Insight: Since defendant had destroyed electronic records and failed to produce the very records that would provide evidence of its contacts within D.C., even after being ordered by court to do so, court denied defendant’s motion to dismiss for lack of personal jurisdiction; court declined to impose any sanctions, but said plaintiff could bring a motion in the future

Nature of Case: Copyright infringement and related claims

Electronic Data Involved: Electronic information on servers

Anderson v. Crossroads Capital Partners, LLC, 2004 WL 256512 (D. Minn. Feb. 10, 2004)

Dec 01 2004

Key Insight: Plaintiff’s use of Cyberscrub data wiping software prior to court-ordered inspection of her computer and after agreeing on the record that she would not purge her hard drive or delete any documents, and her misrepresentations about age of hard drive, were not sufficiently egregious to warrant dismissal but did warrant an adverse inference instruction

Nature of Case: Sexual harassment and whistleblower claims by former employee

Electronic Data Involved: Hard drive of plaintiff’s personal computer

In re Amsted Ind., Inc. ERISA Litig., 2002 WL 31844956 (N.D. Ill. Dec. 18, 2002)

Dec 01 2004

Key Insight: Plaintiffs’ motion to retrieve email granted; defendants required to re-search backup tapes using broader subject matter and time period, and to search email folders of any relevant individual in same manner

Nature of Case: ESOP plan participants sued employer and ESOP for breach of fiduciary duty and other wrongs

Electronic Data Involved: Email and other computerized data

Am. Bankers Ins. Co. of Fla. v. Caruth, 786 S.W.2d 427 (Tex. App. 1990)

Dec 01 2004

Key Insight: Entry of default judgment on issue of liability and imposition of other discovery sanctions against insurer for failure to produce computer data and other discovery abuses was not an abuse of discretion

Nature of Case: Insurance coverage

Electronic Data Involved: Database

Allstate Ins. Co. v. Hodges, 855 So.2d 636 (Fla. Dist. Ct. App. 2003)

Dec 01 2004

Key Insight: Trial court properly ordered insurer to answer victim’s interrogatories despite claimed burden; court remarked: “[I]n the three years following the issuance of Boecher, Allstate still has not implemented a computer program or system for keeping track of the information. In fact, Allstate used two of the very same affidavits it used in Boecher to explain that its computer systems did not have the information requested readily accessible. In this day of the computer age, and in light of the Boecher court’s serious emphasis on the need for the very type of information requested, Allstate may want to reconsider adapting its computer system to provide easier access to the requested information.”

Nature of Case: Personal injury

Electronic Data Involved: Information regarding insurer’s relationship with and payments to medical groups where its experts worked as physicians

Allen v. Armstrong, 2004 WL 1533934 (D. Conn. Apr. 5, 2004)

Dec 01 2004

Key Insight: Order memorialized parties’ agreement regarding motion to compel: defendants agreed to produce all emails that exist in printed form, but would not conduct search of electronic database to retrieve emails since it would be cost prohibitive; defendant understood it would be precluded from offering evidence at trial that was not properly disclosed in discovery

Nature of Case: Employment discrimination

Electronic Data Involved: Email

Aero Products Int’l, Inc. v. Intex Recreation Corp., 2004 WL 417193 (N.D. Ill. Jan. 30, 2004)

Dec 01 2004

Key Insight: Motion for sanctions for destruction of email denied since plaintiff failed to follow procedure set forth in court’s prior order which would have required plaintiff to file a petition seeking the appointment of a computer forensics expert, and instead waited over seven months to bring the issue to the court in the form of a motion for sanctions

Nature of Case: Patent infringement

Electronic Data Involved: Deleted email

Advantacare Health Partners, LP v. Access IV, 2004 WL 1837997 (N.D. Cal. Aug. 17, 2004)

Dec 01 2004

Key Insight: Court denied motion for default judgment but granted motion for an adverse inference instruction and $20,000 in monetary sanctions where, in advance of court-ordered inspection, defendants deleted from their computers numerous electronic files which had been copied from former employer’s computer systems prior to their resignations, and, after the inspection, defendants failed to comply with court’s order that they delete all of plaintiffs’ files from their computers

Nature of Case: Misappropriation of trade secrets and related torts

Electronic Data Involved: Proprietary information in electronic form

Archive - December 1, 2004