December 1, 2006 – Page 13 – Electronic Discovery Law

Wedding & Event Videographers Ass’n Int’l, Inc. v. Videoccasion, Inc., 2006 WL 821809 (M.D. Fla. Mar. 28, 2006)

Dec 01 2006

Key Insight: Where defense counsel withdrew defendants’ objections to plaintiff’s request to inspect, at its expense, defendants’ computers, court denied as moot plaintiff’s Motion to Compel Inspection of Defendants’ Computers, Other Electric Equipment and Electronic Storage Devices and ordered the parties to include a stipulated plan for electronic discovery in their Case Management Report

Nature of Case: Trademark infringement, deceptive and unfair business practice, conversion

Electronic Data Involved: Defendants’ computers

Balboa Threadworks, Inc. v. Stucky, 2006 WL 763668 (D. Kan. Mar. 24, 2006)

Dec 01 2006

Key Insight: During initial case management conferences, court ordered mirror imaging of all of defendants’ computers and peripheral equipment, e.g., ZIP drives, to be done at plaintiffs’ expense, and ordered parties to meet and confer on appropriate search protocol that would address the issue of protection of attorney client privilege and non-business related personal information which may be located on the computer hard drives

Nature of Case: Copyright infringement, fraud and civil conspiracy

Electronic Data Involved: All defendants’ computers and peripheral equipment

Powertrain, Inc. v. Honda Motor Co., Inc. v. 2006 WL 709784 (N.D. Miss. Mar. 15, 2006)

Dec 01 2006

Key Insight: Court granted plaintiff’s request for Rule 56(f) continuance and dismissed defendant’s motion for summary judgment as premature and with leave to refile once defendant had fulfilled all its discovery obligations, where plaintiff had already filed a number of discovery motions and sought, among other things, “information contained in emails which appear to have been deleted by Honda as part of its corporate policy (and which are the subject of a separate Motion for Order Preserving Electronic Data, to Recover[] Deleted Data and Show Cause which is pending before the magistrate)”

Nature of Case: Trademark infringement

Electronic Data Involved: Deleted email

Roberts v. Whitfill, 191 S.W.3d 348 (Tex. App. 2006)

Dec 01 2006

Key Insight: Reversing plaintiff’s $800,000 jury verdict on other grounds, state appellate court expressed concern about spoliation instruction given by trial court since plaintiff had not pursued motion to compel, there was doubt about the materiality and relevance of the data and how or if its absence seriously impaired plaintiff’s ability to present her case, defendant had provided an explanation for the data’s removal from his computer and had offered to produce at least some of the data in paper form or print specific reports, and spoliation instruction given appeared to be excessive based upon surrounding circumstances and spoliation instructions recently approved by Texas courts

Nature of Case: Former partner alleged antitrust violations, fraud and breach of fiduciary duty claims

Electronic Data Involved: QuickBooks data

Happel v. Wal-Mart Stores, Inc., 2006 WL 642562 (N.D. Ill. Mar. 8, 2006)

Dec 01 2006

Key Insight: Where plaintiff alleged that Wal-Mart Pharmacy wrongly filled a prescription for a drug to which she was allergic, and that Wal-Mart’s computer system would have listed plaintiff’s drug allergies, flashed a warning and required further protocols before the drug could be dispensed to plaintiff, court granted motion to compel production of the computer used by the pharmacist (on August 4, 1993) and any reports or logs relating to the computer’s repair, maintenance or malfunction

Nature of Case: Personal injury

Electronic Data Involved: Computer used by particular Wal-Mart Pharmacy in 1993 and reports or logs relating to computer’s repair, maintenance or malfunction

MGE UPS Sys., Inc. v. Fakouri Elec. Eng’g, Inc., 2006 WL 686577 (N.D. Tex. Mar. 17, 2006)

Dec 01 2006

Key Insight: Court denied plaintiff’s motion for summary judgment and dismissal of opponent’s counterclaims and affirmative defenses based upon spoliation of evidence described as “intentionally modifying and deleting files from the laptops central to this case,” finding that evidence was “far from clear-cut” that defendants destroyed evidence sufficient to warrant a death-penalty sanction

Nature of Case: Copyright infringement, misappropriation of trade secrets and other claims

Electronic Data Involved: Files on laptops

Fed. Trade Comm’n v. Ameridebt, Inc., 2006 WL 618563 (N.D. Cal. Mar. 13, 2006)

Dec 01 2006

Key Insight: Magistrate denied third party’s motion to stay discovery order requiring him to give permission to Google, Inc. to produce emails from his gmail account, where third party failed to establish any likelihood of success on appeal or that the balance of hardships tipped in his favor; court was “skeptical” of third party’s unsubstantiated arguments that the volume of email was large and that attorney review would be unduly costly, and noted that “email could likely be screened efficiently through the use of electronic search terms that the parties agreed upon”

Nature of Case: Allegations of consumer fraud

Electronic Data Involved: Email in third party’s Google email account

Washburn v. Lavoie, 437 F.3d 84 (D.C. Cir. 2006)

Dec 01 2006

Key Insight: Magistrate did not err in refusing to order defendants to produce all emails that mentioned plaintiff or plaintiff’s lawsuit, where magistrate did order defendants to produce the emails for in camera inspection and magistrate’s personal review showed that nearly half were devoid of anything bearing upon the litigation and the other half dealt with irrelevant issues such as the costs of litigation, retention of counsel and the need to answer interrogatories

Nature of Case: Defamation

Electronic Data Involved: Email

Madden v. Wyeth, 2006 WL 568015 (N.D. Tex. Mar. 7, 2006)

Dec 01 2006

Key Insight: Court awarded plaintiff $47,970 in sanctions representing attorney’s fees and expenses reasonably incurred in bringing motion to compel discovery of Wyeth’s adverse event database and production of prior versions of certain reports and source documents; court had earlier granted plaintiff and her expert supervised access to defendant’s database

Nature of Case: Drug products liability

Electronic Data Involved: Database and source documents for certain reports

Kiliszek v. Nelson, Watson & Assocs., LLC, 2006 WL 335788 (M.D. Pa. Feb. 14, 2006)

Dec 01 2006

Key Insight: Court granted plaintiffs’ Rule 56(f) motion to delay adjudication of summary judgment motion to allow further discovery where collection agency did not retain hard copies of collection letters but instead noted the nature and types of letters on a debtor overview report and saved copies of form letters, and where dispute existed over whether an exhibit submitted in support of defendant’s motion was an accurate reproduction of defendant’s initial communication to plaintiff or a fabrication

Nature of Case: Debtor sued collection agency under Fair Debt Collection Practices Act

Electronic Data Involved: Computer record of collection activity and form letters

Archive - December 1, 2006