December 1, 2006 – Page 7 – Electronic Discovery Law

Bank One, N.A. v. Echo Acceptance Corp., 2006 WL 2564262 (S.D. Ohio Sept. 1, 2006)

Dec 01 2006

Key Insight: Court ordered that, to the extent the information kept in database was not duplicative of hard copy complaints produced, defendants must produce customer dispute information (including related information dealing with investigations and results) available through defendants’ computer databases dealing with disputes by certain consumers

Nature of Case: Breach of indemnification agreement

Electronic Data Involved: Databases used to manage customer accounts

Patmont Motor Werks, Inc. v. CSK Auto Inc., 2006 WL 2591042 (D. Nev. Sept. 8, 2006)

Dec 01 2006

Key Insight: Court denied plaintiff’s renewed motion for sanctions where plaintiff had failed to satisfy local meet and confer requirement; parties had previously engaged in meet and confer during recess and agreed on search methodology for responsive documents and emails

Nature of Case: Trademark and copyright infringement

Electronic Data Involved: Spreadsheet; email

Frees, Inc. v. McMillian, 2006 WL 2668843 (E.D. Tenn. Sept. 15, 2006)

Dec 01 2006

Key Insight: Court narrowed subpoena to defendant’s new employer, setting out “tiered discovery” process: plaintiff was to identify at least one project involving files allegedly removed from disputed laptop; new employer would then search for documents and/or files of the type described that were related to that project and produce them; if any of the produced documents and/or files were shown to be relevant or reasonably calculated to lead to the discovery of admissible evidence, then the parties would proceed to the ?second tier? of discovery and plaintiff could then request documents related to other projects; if no responsive documents could be found with respect to the first identified projects, however, plaintiff would be required to make a sufficient showing to the court as to why discovery should proceed further

Nature of Case: Design firm sued former vice president under Computer Fraud and Abuse Act

Electronic Data Involved: Proprietary business and technological data

Plasse v. Tyco Elecs. Corp., 448 F. Supp. 2d 302 (D. Mass. 2006)

Dec 01 2006

Key Insight: Where forensic inspection of plaintiff?s laptop and disks showed evidence of tampering, including: deleted files, system date and time manipulations, access histories showing that various relevant documents were accessed after court?s order and before plaintiff?s second deposition, and other fragments of relevant documents and emails that had not been produced, and plaintiff’s explanations “verge[d] on the absurd,” court found that plaintiff had engaged in an egregious pattern of misconduct, dismissed complaint with prejudice, and invited defendant to submit an application for costs and attorneys? fees

Nature of Case: Wrongful termination

Electronic Data Involved: Laptop; drafts of plaintiff’s resume

Quinby v. WestLB AG, 245 F.R.D. 94 (S.D.N.Y. 2006)

Dec 01 2006

Key Insight: Court applied Zubulake factors and granted in part defendant?s motion to shift costs, holding that defendant was entitled to recover 30 percent of the costs of restoring and searching backup tapes for responsive emails of one former employee, stating: “[I]f a party creates its own burden or expense by converting into an inaccessible format data that it should have reasonably foreseen would be discoverable material at a time when it should have anticipated litigation, then it should not be entitled to shift the costs of restoring and searching the data.”

Nature of Case: Gender discrimination

Electronic Data Involved: Email stored on backup tapes

Arista Records, LLC v. Tschirhart, 2006 WL 2728927 (W.D. Tex. Aug. 23, 2006)

Dec 01 2006

Key Insight: Court entered default judgment as discovery sanction where forensic evidence showed that defendant deliberately used ?wiping? software to permanently remove data from her hard drive and stated: “The sanction in the present case is to deter other defendants in similar cases from attempting to destroy or conceal evidence of their wrongdoing.”

Nature of Case: Copyright infringement

Electronic Data Involved: Hard drive

Krumwiede v. Brighton Assocs., L.L.C., 2006 WL 2714609 (N.D. Ill. Sept. 20, 2006)

Dec 01 2006

Key Insight: Further to its previous orders imposing $111,348 in sanctions against Krumwiede for willful and bad faith spoliation of evidence, and where Krumwiede presented no evidence of financial inability to pay sanctions amount, court ordered Krumwiede to pay sanctions within 30 days or the remainder of his pleadings would be stricken

Nature of Case: Former employee who went to work for competitor sued for back pay and reformation of employment agreement; former employer asserted counterclaims for breach of non-compete and confidentiality clauses and related claims

Electronic Data Involved: Laptop computers

Consol. Aluminum Corp. v. Alcoa, Inc., 244 F.R.D. 335 (M.D. La. 2006)

Dec 01 2006

Key Insight: Court imposed monetary sanctions but not adverse inference instruction where defendant negligently failed to implement adequate litigation hold and preserve electronic evidence, but evidence was insufficient to show defendant acted in bad faith or with culpable state of mind or that plaintiff had suffered any prejudice

Nature of Case: Environmental litigation

Electronic Data Involved: Email and backup tapes

OKI Am., Inc. v. Advanced Micro Devices, Inc., 2006 WL 2547464 (N.D. Cal. Aug. 31, 2006)

Dec 01 2006

Key Insight: Court denied party’s motion to compel financial data in searchable electronic format in part because moving party had itself refused to produce its financials in searchable electronic format

Nature of Case: Patent litigation

Electronic Data Involved: Financial materials produced on CD in unsearchable “TIFF” format

Buskey v. Boston Market Corp., 2006 WL 2527826 (E.D.N.Y. Aug. 14, 2006)

Dec 01 2006

Key Insight: Defendants’ failure to produce accident report amounted to spoliation of evidence and provided additional ground for denying defense motion for summary judgment

Nature of Case: Slip and fall personal injury

Electronic Data Involved: Accident report prepared by defendant

Archive - December 1, 2006