December 1, 2006 – Page 3 – Electronic Discovery Law

Discover Fin. Servs., Inc. v. Visa U.S.A., Inc., 2006 WL 3230157 (S.D.N.Y. Nov. 8, 2006)

Dec 01 2006

Key Insight: Court ruled that American Express would be allowed to conduct a Rule 30(b)(6) deposition to address the topics of Wells Fargo’s document retention, collection and production efforts in the litigation, but that such deposition would be limited to three hours; court further noted: “American Express and Wells Fargo have each declined to produce certain information, for example, the content of their ‘litigation hold’ notices. In such situations, it is unlikely that I would compel one party to produce such information, unless American Express and all of the Bank Defendants stipulate to simultaneous exchange of all their information concerning a given topic.”

Nature of Case: Antitrust

Electronic Data Involved: Legal hold notices

Discover Fin. Servs., Inc. v. Visa U.S.A., Inc., 2006 WL 3462125 (S.D.N.Y. Nov. 29, 2006)

Dec 01 2006

Key Insight: Court declined to compel American Express to search for email sent from and to certain executives who were no longer employed by American Express, since the moving parties had not agreed to search for email sent from or to their own former executives and American Express had already produced some 27,501 emails sent to or from certain former executives through the production of email from other custodians

Nature of Case: Antitrust

Electronic Data Involved: Email of former executives

Kimbrough v. City of Cocoa, 2006 WL 3500873 (M.D. Fla. Dec. 4, 2006)

Dec 01 2006

Key Insight: Court denied plaintiffs’ motion for spoliation sanctions based upon defendant’s failure to produce complete copy of particular monthly medical report where plaintiffs failed to show that duty to preserve attached to the report, or that report was crucial to their claims, and there was no evidence of bad faith, especially since defendant had gone to “extraordinary lengths” to attempt to retrieve a copy of the complete report

Nature of Case: Civil rights, excessive force

Electronic Data Involved: Monthly medical report

Ryan v. Staten Island Univ. Hosp., 2006 WL 3497875 (E.D.N.Y. Dec. 5, 2006)

Dec 01 2006

Key Insight: Where defendant failed to timely disclose that it was withholding certain information from production and defense counsel made representations several times to plaintiff and to court that she had provided full and complete discovery, court: (1) granted motion to compel production of database in hard copy and in electronic form with specific redactions noted and included in revised privilege log; (2) extended discovery cut-off date; and (3) awarded sanctions solely against defense counsel (and not client) for costs of motion

Nature of Case: Fraud and medical malpractice

Electronic Data Involved: Database

MGE UPS Sys., Inc. v. Titan Specialized Servs., Inc., 2006 WL 3524502 (M.D. Tenn. Dec. 6, 2006)

Dec 01 2006

Key Insight: Where evidence showed that defendant had not fully complied with preliminary injunction and had continued to retain and use disputed software, court ordered defendant to produce all of its computers for inspection by plaintiff’s computer expert to ensure that all plaintiff’s software and trade secrets were removed; court further ordered defendant to bear costs of expert’s work and to pay plaintiff its reasonable fees and expenses in bringing the motion

Nature of Case: Copyright infringement and misappropriation of trade secrets

Electronic Data Involved: Software programs, disks, hard drives

PML N. Am., LLC v. Hartford Underwriters Ins. Co., 2006 WL 3759914 (E.D. Mich. Dec. 20, 2006)

Dec 01 2006

Key Insight: Where one defendant failed to comply with court’s orders regarding forensic inspection and copying of hard drives, and there was evidence of data spoliation and physical tampering with computer hardware, court concluded that default judgment was appropriate sanction and also ordered the defendant to pay the reasonable attorney fees and costs that its misbehavior caused plaintiff to incur

Nature of Case: Insurance fraud, insurance coverage

Electronic Data Involved: Various hard drives and backup drives

Christopher v. Tulsa Ambassador Hotel, L.L.C., 2006 WL 3626761 (N.D. Okla. Dec. 11, 2006)

Dec 01 2006

Key Insight: Magistrate judge was within his discretion to order that original discs be produced for computer expert’s inspection and copying so that all parties could be satisfied as to the authenticity and integrity of the copies provided

Nature of Case: Employment discrimination

Electronic Data Involved: Computer discs onto which plaintiff had copied various files of defendant

Angelotti v. Roth, 2006 WL 3666849 (S.D. Fla. Nov. 17, 2006)

Dec 01 2006

Key Insight: Court denied request for sanctions or adverse inference instruction based on absence of video footage of plaintiff after arrest since there was no evidence of bad faith and video security system had experienced a number of unexplained problems

Nature of Case: Plaintiff alleged use of excessive force

Electronic Data Involved: Video surveillance footage

Jacobson v. Starbucks Coffee Co., 2006 WL 3146349 (D. Kan. Oct. 31, 2006)

Dec 01 2006

Key Insight: Court imposed monetary sanctions, ordered defendant to submit to Rule 30(b)(6) deposition regarding its efforts to locate and produce responsive documents, and ordered defendant to produce key player’s computer for inspection by plaintiff, where evidence showed that the home and/or work computers of a key player and several witnesses had not been searched for responsive documents

Nature of Case: Employment discrimination

Electronic Data Involved: Hard drive; computerized records

Malletier v. Dooney & Bourke, Inc., 2006 WL 3476735 (S.D.N.Y. Nov. 30, 2006)

Dec 01 2006

Key Insight: Where plaintiff provided only partial production and made false representations to court about non-existence of responsive documents, court imposed monetary sanctions and would deem as true certain contentions

Nature of Case: Trademark infringement

Electronic Data Involved: Email concerning customer communications

Archive - December 1, 2006