2004 – Page 16 – Electronic Discovery Law

Strasser v. Yalamanchi, 783 So.2d 1087 (Fla. Dist. Ct. App. 2001)

Dec 01 2004

Key Insight: Affirming jury award for plaintiff, where plaintiff had been permitted to add claim for negligent destruction of evidence based on defendant’s failure to preserve electronic records and computer hard drive, court found no error in allowing plaintiff to introduce at trial evidence of defendant’s discovery misconduct. Court further concluded that strong statements of disapproval of defendant’s discovery abuses did not require trial judge’s recusal.

Nature of Case: Breach of contract suit between former partners

Electronic Data Involved: Computer hard drive

Strasser v. Yalamanchi, 669 So.2d 1142 (Fla. Dist. Ct. App. 1996)

Dec 01 2004

Key Insight: Order allowing plaintiff unrestricted access to defendant’s computer system quashed, because the order allowed plaintiff unrestricted access to defendant’s computer system, including all of his programs and directories, without protection for any privileged or confidential information and without safeguards or restrictions to minimize any potential harm to the computer system

Nature of Case: Breach of contract suit between former partners

Electronic Data Involved: Inspection of computer system to search for financial information

Stevenson v. Union Pac. R.R. Co., 354 F.3d 739 (8th Cir. 2004)

Dec 01 2004

Key Insight: Adverse inference jury instruction against defendant for its prelitigation destruction of tape-recorded voice radio communications between train crew and dispatchers on date of collision was proper, but refusal to permit testimony offered by defendant to rebut the adverse inference was abuse of discretion

Nature of Case: Negligence

Electronic Data Involved: Tape-recorded voice radio communications

State v. City of Clearwater, 863 So.2d 149 (Fla. 2003)

Dec 01 2004

Key Insight: City employees? personal email not subject to disclosure under public records law because it fell outside the state’s statutory definition of public records; mere placement of such email on government-owned computer system does not transform such email into a “public record”

Nature of Case: Suit by newspaper to access city employees’ emails under public records law; issue was certified to Florida Supreme Court as “question of great public importance”

Electronic Data Involved: Personal email stored on government-owned computers

State v. Cartwright, 336 Or. 408, 85 P.3d 305 (2004)

Dec 01 2004

Key Insight: Concluding that defendant had a right to obtain audiotaped prior statements of witnesses for use in cross-examining the individuals whose statements were on the tapes, court noted in footnote: “The audiotapes at issue here are the functional equivalent of written statements. It would be a towering triumph of form over substance to hold that [defendant’s former employer’s] choice of an electronic, rather than a documentary, mode of preserving the witness’ statements puts the statements beyond the reach of a subpoena duces tecum.”

Nature of Case: Criminal sexual harassment

Electronic Data Involved: Audiotapes of witness’ statements made by defendant’s former employer

Stark v. PPM Am., Inc., 2003 WL 21223268 (N.D. Ill. May 23, 2003)

Dec 01 2004

Key Insight: Court denied successful defendant’s petition for costs associated with its outside vendor’s compilation, search and production of 50,000 emails on grounds that such costs were not listed as recoverable costs in 28 USC ? 1920

Nature of Case: Petition for attorneys’ fees and non-taxable costs under fee-shifting provision of ERISA

Electronic Data Involved: Emails

Star Tribune v. Minn. Twins P’ship, 659 N.W.2d 287 (Minn. Ct. App. 2003)

Dec 01 2004

Key Insight: Court’s rejection of media’s request for access to discovery documents produced by parties in litigation and covered by protective order was not abuse of discretion; CD-ROM was not filed with court, and thus was not subject to common law right of access

Nature of Case: Media companies brought motion to intervene and modify protective order in third party litigation, seeking access to materials produced in discovery

Electronic Data Involved: CD-ROM containing 9,000 documents

Stallings v. Daniels, 583 S.E.2d 428 (Table, Text in WESTLAW), 2003 WL 21791751 (N.C. App. Aug. 5, 2003) (Unpublished)

Dec 01 2004

Key Insight: Appellate court reversed trial court’s dismissal of suit; backup tape of plaintiff’s earlier court proceeding was public record under state statute and defendants were required to permit plaintiff to examine and inspect the backup tape

Nature of Case: Suit to compel disclosure of public records

Electronic Data Involved: Backup tape containing sound recording of a hearing in a separate lawsuit

S. Diagnostic Assoc. v. Bencosme, 833 So.2d 801 (Fla. Dist. Ct. App. 2002)

Dec 01 2004

Key Insight: Appellate court granted writ and quashed trial court’s order granting party’s motion for leave to inspect non-party’s computer system; remanded with directions to trial court to craft a narrowly-tailored order that sets parameters and limitations on the inspection

Nature of Case: Insurance bad faith

Electronic Data Involved: Computer system; records of payments to physicians

Sonnino v. Univ. of Kansas Hosp. Auth., 220 F.R.D. 633 (D. Kan. 2004)

Dec 01 2004

Key Insight: Defendant ordered to provide a complete and full response to interrogatory seeking information about Hospital Authority’s computer and email systems; defendant’s “very brief and general response” was insufficient

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

Electronic Data Involved: Information re computer and email systems

Archive - 2004