December 2004 – Page 17 – Electronic Discovery Law

Sonnino v. Univ. of Kansas Hosp. Auth., 2004 WL 764085 (D. Kan. Apr. 8, 2004)

Dec 01 2004

Key Insight: Defendant’s response to (overbroad) document request, which directed requesting party to defendant’s web site where relevant HR policies and a particular employee handbook could be retrieved, was not insufficient response; court narrowed request and ordered production of any additional documents within 20 days; no sanctions warranted

Nature of Case: Former employee alleged violations of free speech, due process and gender discrimination

Electronic Data Involved: Electronic HR policies and manuals

Smith v. Texaco Inc., 951 F. Supp. 109 (E.D. Tex. 1997)

Dec 01 2004

Key Insight: Defendant’s motion to dissolve TRO requiring preservation of documents and electronic data denied, however, “to mitigate the high costs associated with electronic document storage, the court will permit defendants to delete electronic records in the ordinary and usual course of business; provided, however, that hard copy records be made and kept of any and all [relevant] electronic records . . .”

Nature of Case: Race discrimination

Electronic Data Involved: Unspecified human resources records, payroll records

Sheppard v. River Valley Fitness One, LP, 203 F.R.D. 56 (D.N.H. 2001)

Dec 01 2004

Key Insight: Defense counsel’s failure to produce computer records and to retain all drafts of settlement documents reflected lack of diligence rather than intentional effort to abuse discovery process; testimony of witness barred and $500 awarded as sanctions

Nature of Case: Sexual harassment

Electronic Data Involved: Computer records

Sempra Energy Trading Corp. v. Brown, 2004 WL 2714404 (N.D. Cal. Nov. 30, 2004)

Dec 01 2004

Key Insight: Claiming that it had already spent approximately $1.4 million to restore, review and produce email, and may have to expend as much as $3 million more in order to complete the document review and production, nonparty unsuccessfully attempted to avoid compliance with discovery orders in state proceeding by seeking injunctive and declaratory relief in federal court

Nature of Case: Action for declaratory and injunctive relief

Electronic Data Involved: Email stored on backup tapes

Sega Enterprises, Ltd. v. MAPHIA, 948 F. Supp. 923 (N.D. Cal. 1996)

Dec 01 2004

Key Insight: Brief reference to court’s granting plaintiff’s requested ex parte TRO and seizure order to seize computers and hardware, copy memory, and delete pirated software before returning items to defendant

Nature of Case: Copyright and trademark infringement, unfair competition

Electronic Data Involved: Hard drives and memory devices (video game software)

SEC v. Beacon Hill Asset Mgmt. LLC, 231 F.R.D. 134 (S.D.N.Y. 2004)

Dec 01 2004

Key Insight: Granting motion to compel contact list printed out from defendant’s contact management software program which was not timely included on defendant’s privilege log, court rejected “frivolous” argument that the contact list technically did not exist until it was printed: “For more than thirty years, Fed.R.Civ . P. 34(a) has included data stored on electronic media as being subject to a Rule 34 request. The fact that the data has not been printed out does not mean that the document does not exist. Indeed, if BH’s argument were meritorious, any party could avoid producing damaging documents through the simple expedient of storing them on electronic media and never printing them out.”

Nature of Case: SEC enforcement action

Electronic Data Involved: Email, spreadsheets and contact list

In re Search of 3817 W. West End, 321 F. Supp. 2d 953 (N.D. Ill. 2004)

Dec 01 2004

Key Insight: Government required to submit a proposed protocol for searching the contents of seized computer hard drive and disks before it could conduct any search; court observed that government essentially sought “a license to roam through everything in the computer without limitation and without standards,” and that such a request failed to satisfy the particularity requirement of the Fourth Amendment

Nature of Case: Suspected tax fraud

Electronic Data Involved: Computer hard drive and computer disks

Sch. of Visual Arts v. Kuprewicz, 771 N.Y.S.2d 804 (N.Y. App. Div. 2003)

Dec 01 2004

Key Insight: Brief reference in footnote 9 to court’s previous oral ruling enjoining defendant from destroying or erasing any files from her home computer and directing defendant to give the computer to her lawyer so as to preserve potential evidence

Nature of Case: Employer sued former employee alleging she posted false job postings on web site and caused unsolicited job applications and pornographic email to be sent to employer

Electronic Data Involved: Home computer

Santiago v. Miles, 121 F.R.D. 636 (W.D.N.Y. 1988)

Dec 01 2004

Key Insight: Motion to compel production of computer printouts denied as to those constituting work product, granted as to those that were not prepared in anticipation of litigation

Nature of Case: Inmates sued for intentional discrimination in assignment of housing, programs, and administration of discipline

Electronic Data Involved: Computer printouts showing analysis of work locations and ethnicity of inmates

Samide v. Roman Catholic Diocese of Brooklyn, 773 N.Y.S.2d 116 (N.Y. App. Div. 2004)

Dec 01 2004

Key Insight: Court modified prior order directing defendants to produce contents of hard drives for in camera inspection; individual defendants now directed to produce hard copies of all emails relating to allegations against certain individual, including any deleted emails recovered by a qualified expert appointed by the referee supervising the discovery; only those emails that in fact deal with relevant allegations to be turned over to the plaintiff; plaintiff agreed to bear all costs related to recovery of data from hard drive

Nature of Case: Sex discrimination, negligent supervision and breach of contract

Electronic Data Involved: Email and deleted email on hard drives of individual defendants

Archive - December 2004