Archive - August 2006

Frey v. Gainey Transp. Servs., Inc., 2006 WL 2443787 (N.D. Ga. Aug. 22, 2006)

This personal injury litigation arose from an accident involving plaintiff’s car and a tractor-trailer driven by defendant Rogers while he was employed by defendant Gainey Transportation. Ten days after the accident occurred and before any litigation had been filed, plaintiff’s counsel sent a letter to Tim Kelly, the Safety Director at Gainey, demanding that Mr. Kelly preserve numerous and varied documents and materials fully described in a fifteen-page attachment to the letter. Plaintiff’s counsel asserted that any “destruction or alteration” of the material would be considered “spoliation of evidence.” In this decision, the court denies plaintiff’s motion for sanctions based upon Gainey’s failure to preserve any “QualComm” satellite tracking information.

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In re CV Therapeutics, Inc. Sec. Litig., 2006 WL 2458720 (N.D. Cal. Aug. 22, 2006)

In this securities class action, the parties had previously agreed on the entry of a stipulated order governing the discovery of material restored from backup tapes maintained by the defendant. (A copy of the Backup Tape Stipulation is available here.) Subsequently, plaintiffs learned from an undisclosed source that additional backup tapes existed which had not been produced, and moved to compel. The court issued an order dated April 3, 2006, which resolved that dispute, along with several other discovery disputes. (A copy of the court’s April 3, 2006 order is available here.) With respect to the newly discovered backup tapes, the court concluded that defendants had not intentionally hid the existence of the tapes, but that they should have been subject to the terms of the parties’ Backup Tape Stipulation. It continued:

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Nat’l Econ. Research Assocs., Inc. v. Evans, 2006 WL 2440008 (Mass. Super. Ct. Aug. 3, 2006)

In this litigation between a consulting firm and its former employee, the court considered the firm’s motion to compel the production of attorney-client privileged communications. Plaintiff sought production of emails sent and received via the employee’s personal, password-protected email account, which were saved in a temporary Internet file on the employee’s company-issued laptop and retrieved through forensic means after his departure from the firm.

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Thyroff v. Nationwide Mut. Ins. Co., 460 F.3d 400 (2d Cir. 2006)

The plaintiff in this case is an insurance agent formerly associated with the defendant insurance company. Plaintiff and defendant had executed an Agent’s Agreement, and defendant had required that plaintiff lease an agency office-automation system (“AOA”), including hardware and software, from defendant. During the 21 years he was an agent of defendant, plaintiff’s office operations were very much dependent on the AOA. Plaintiff and his staff entered business data and information onto the hard drives of the AOA system on a daily basis, and defendant then uploaded that information on a nightly basis from plaintiff’s computers onto defendant’s computers. In the process, defendant also uploaded plaintiff’s personal information.

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Delta Fin. Corp. v. Morrison, 2006 WL 2403437 (N.Y. Sup. Ct. Aug. 17, 2006)
This case involved breach of contract and fraud claims stemming from an exchange of assets between some of the parties, which took place in August 2001. The opinion resolves the parties’ dispute relating to three categories of electronic documents sought by one of the defendants (“LLC”) from the plaintiff (“DFC”): 1) non-email electronic documents which LLC claimed were not captured by DFC’s search process; 2) emails which LLC claimed were not captured by DFC’s ninety-day back-up tapes; and 3) emails from January 1, 1999 through July 12, 2000.

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United States v. Magnesium Corp. of Am., 2006 WL 2350155, (D. Utah Aug. 11, 2006)

In this decision, the court considered the government’s motion for an order requiring certain defendants "to maintain documents in their possession that are relevant to this case throughout all phases of the litigation." In making the request, the government indicated that it has no reason to believe that the defendants were destroying documents, but also noted that Phase III of the litigation could occur as late as 2009. Since the government did not know whether the defendants had a policy that limits the time that documents are retained, it wanted to ensure that relevant documents were not inadvertently destroyed as part of the defendants’ document retention policy. Read More