December 1, 2007 – Page 4 – Electronic Discovery Law

ATM Exchange, Inc. v. Visa Int’l Serv. Ass’n, 2007 WL 1674230 (S.D. Ohio June 7, 2007)

Dec 01 2007

Key Insight: Court ordered defendant to provide verified discovery response indicating that it had produced all relevant and responsive documents and/or information collected from imaged hardrive of key player’s computer, and to provide verified discovery response stating whether or not it had an email document retention policy in place during relevant time period

Nature of Case: Negligent misrepresentation and fraud

Electronic Data Involved: Email

Potter v. Havlicek, 2007 WL 539534 (S.D. Ohio Feb. 14, 2007)

Dec 01 2007

Key Insight: Although court denied motion for preliminary injunction forbidding defendant from using, disclosing or destroying emails and other ESI described by defendant as evidence he would present if tangentially related divorce case went to trial, court ordered defendant to produce subject emails and other ESI within 10 days

Nature of Case: Alleged violations of Electronic Communications Privacy Act and Stored Communications Act, invasion of privacy and intentional infliction of emotional distress

Electronic Data Involved: Emails and other ESI described by defendant in affidavit in tangentially related divorce case

Whitney v. Wurtz, 2007 WL 521231 (N.D. Cal. Feb. 15, 2007)

Dec 01 2007

Key Insight: Court ordered plaintiffs to provide a separate disk for each plaintiff’s responses to defendant?s request for production, and instructed (1) that ?electronic documents shall be produced as they are kept in the usual course of business or Plaintiffs shall organize and label the documents to correspond with Veriscape’s requests? and (2) that electronic documents be produced without the use of any compression software and in the format requested by defendant at the hearing

Nature of Case: Breach of contract, termination, and deceit

Electronic Data Involved: Electronic documents produced on computer disk

Corvello v. New England Gas Co., Inc., 243 F.R.D. 28 (D.R.I. 2007)

Dec 01 2007

Key Insight: Court concluded that any privilege that may have attached to documents inadvertently produced on CD was waived, since non-party?s counsel failed to exercise due care when he produced CD without first reviewing it, failed to immediately accept party?s offer to temporarily halt its document review after he was alerted that some of the documents on CD appeared to be internal communications with counsel, and furnished an inadequate privilege log after two-week delay

Nature of Case: Litigation between gas company and landowners

Electronic Data Involved: Privileged documents inadvertently produced on CD

Lamb v. Maloney, 850 N.Y.S.2d 138 (N.Y. App. Div. 2007)

Dec 01 2007

Key Insight: Trial court did not err in denying without prejudice plaintiff?s motion, based on spoliation of evidence, to strike defendants? answers or preclude defendants? use of office records to support their defenses; however, court did err in not granting alternative relief requested, i.e., compelling additional discovery, including depositions of certain witnesses, production of records, and inspection of computers, since such additional discovery was reasonably calculated to produce relevant and material evidence and defendants failed to demonstrate any prejudice as a result

Nature of Case: Medical malpractice

Electronic Data Involved: Office computer hard drive and information regarding its destruction

Digene Corp. v. Third Wave Techs., Inc., 2007 WL 4939048 (W.D. Wis. Oct. 24, 2007)

Dec 01 2007

Key Insight: Where discovery missteps which resulted in delayed production of notebooks were merely negligent and not reckless or intentional, court imposed penalty of cost-shifting and reimbursement in the amount of $50,000 and declined to impose any of the ?inquisitorial sanctions? demanded by plaintiff; court further ruled that ?no [defense] attorneys will be dragged behind a chariot outside the city’s walls.?

Nature of Case: Patent infringement and antitrust claims

Electronic Data Involved: Scientists’ notebooks that were converted into electronic format

In re EZ Pay Servs., Inc., 380 B.R. 861 (Bankr. M.D. Fla. 2007)

Dec 01 2007

Key Insight: Court approved Trustee?s request for permission to pay computer forensics expert $70,000 as a necessary cost and expense of preserving the estate, where recovery of deleted electronic information was necessary to enable Trustee to locate and administer valuable assets of estate and to understand debtor’s prepetition transactions, and where expert?s services provided a concrete benefit for the estate since approximately $400,000 in assets was recovered by Trustee as a result

Nature of Case: Bankruptcy case

Electronic Data Involved: 14 hard drives; deleted data

Azimi v. United Parcel Serv., Inc., 2007 WL 2010937 (D. Kan. July 9, 2007)

Dec 01 2007

Key Insight: Where plaintiff needed requested information to compare his circumstances of disciplinary action and termination with others who held his position, and defendant’s undue burden objection rested on unsupported claim that it would take over 100 hours to retrieve information from various company databases, court overruled objection finding that defendant had not demonstrated undue burden: “At best, it has perhaps shown that compliance would be inconvenient and involve some expense.”

Nature of Case: Employment discrimination, wrongful termination

Electronic Data Involved: Computerized accident and driving histories of other employees

Peak Interests, LLC v. Tara Hills Villas, Inc., 2007 WL 2993817 (D. Neb. Oct. 11, 2007)

Dec 01 2007

Key Insight: Where plaintiff objected to producing laptop because it contained irrelevant confidential or proprietary information and promised to ?provide all requested data, in the electronic format in which it was created,? but production was not forthcoming, and, despite promise to do so plaintiff did not submit affidavit from computer consultant affirming that efforts to retrieve responsive information from laptop had been unsuccessful, court ordered plaintiff to deliver laptop to defense counsel for physical inspection and copying by a neutral third party; court restricted access to any non-responsive information retrieved to counsel of record, their experts, and necessary support staff

Nature of Case: Lease dispute

Electronic Data Involved: Laptop

Rouse v. II-VI, Inc., 2007 WL 2907935 (W.D. Pa. Oct. 1, 2007)

Dec 01 2007

Key Insight: Among other findings on plaintiff’s motion to compel, court concluded that keyword search performed by defendant was adequate given the circumstances of the case

Nature of Case: Employment discrimination

Electronic Data Involved: Email

Archive - December 1, 2007