December 1, 2007 – Page 6 – Electronic Discovery Law

Kellogg v. Nike, Inc., 2007 WL 4570871 (D. Neb. Dec. 26, 2007)

Dec 01 2007

Key Insight: Resolving various discovery issues, court found defendants? explanation of document search sufficient and observed that plaintiff could not identify any particular document or category of missing documents based on evidence aside from his own incredulity; court added that, if gaps evolved after defendants’ supplementation of production, plaintiff could revisit the issue

Nature of Case: Patent infringement

Electronic Data Involved: Email and other ESI

Stroupe v. Wal-Mart Stores East, L.P., 2007 WL 3223224 (E.D. Va. Oct. 29, 2007)

Dec 01 2007

Key Insight: Adverse inference instruction not warranted for defendant’s routine destruction of surveillance videotapes created on date of incident; defendant presented evidence that there was no videotape that depicted the subject area where the incident occurred and plaintiff did not show that destroyed videotapes contained any images or information relevant to any issue at trial

Nature of Case: Personal injury

Electronic Data Involved: Surveillance videotapes

Network Sys. Architects Corp. v. Dimitruk, 2007 WL 4442349 (Mass. Super. Ct. Dec. 6, 2007)

Dec 01 2007

Key Insight: Where former employee admitted using file shredder program on his NSA-issued laptop before returning it, and evidence showed use of file shredder program on competitor-issued laptop computer, court found defendants? conduct was ?egregious? and amounted to spoliation but denied plaintiff?s request for entry of default judgment; court instead ordered production of computer hard drive for further examination, dismissed defendants? counterclaims, and ordered defendants to pay attorneys? fees and expenses incurred as a result of defendants? misconduct

Nature of Case: Seller of computer hardware and software sued former employee and competitor for misappropriation of trade secrets, unfair competition and related claims

Electronic Data Involved: Laptop computers

Muro v. Target Corp., 243 F.R.D. 301 (N.D. Ill. 2007)

Dec 01 2007

Key Insight: Court granted plaintiff?s motion to compel production of documents listed on defendants? privilege log, faulting among other things Target?s failure to identify and describe separately on its privilege log each allegedly privileged message within a string of email communications

Nature of Case: Putative class action alleging violations of Truth in Lending Act

Electronic Data Involved: Privileged email

Wachtel v. Health Net, Inc., 2007 WL 1791553 (D.N.J. June 19, 2007)

Dec 01 2007

Key Insight: Further to its December 6, 2006 Opinion and Order (at 239 F.R.D. 81) sanctioning defendants and awarding plaintiffs their reasonable attorneys’ fees and expenses incurred in connection with ?Rule 37/Integrity hearing? and related discovery motions, court approved $6,723,883 as amount of sanction

Nature of Case: Beneficiaries of employment benefit health plans asserted class action claims under ERISA

Electronic Data Involved: Email and other electronic documents

Marketfare Annunciation, LLC v. United Fire & Cas. Ins. Co., 2007 WL 3273440 (E.D. La. Nov. 5, 2007)

Dec 01 2007

Key Insight: Because trial was imminent and discovery had closed, and plaintiffs never sought extension of discovery deadline or expedited consideration of motion, court declined to address merits of plaintiffs? request that they be permitted to retain an expert at defendants’ expense to review defendants’ systems for relevant data, and, if data had been irretrievably deleted, for monetary and other sanctions; court advised that the appropriate method for relief for non-production of electronic data was for plaintiffs to first move to compel production of omitted materials, as opposed to bypassing this step and seeking sanctions directly

Nature of Case: Insurance coverage

Electronic Data Involved: Email and other electronic information about plaintiffs’ insurance claims

Mother, LLC. v. L.L. Bean, Inc., 2007 WL 2302974 (W.D. Wash. Aug. 7, 2007)

Dec 01 2007

Key Insight: As sanction for plaintiff?s failure to comply with discovery order requiring production of ?all electronically stored information regarding its finances,” court struck plaintiff’s claim for loss of profits and ordered plaintiff to pay reasonable expenses, costs, and attorneys? fees incurred by defendant in bringing motion

Nature of Case: Trade dress infringement

Electronic Data Involved: ESI regarding plaintiff’s finances

RLI Ins. Co. v. Indian River Sch. Dist., 2007 WL 3112417 (D. Del. Oct. 23, 2007)

Dec 01 2007

Key Insight: Court denied plaintiff?s untimely motion to re-open discovery and to compel compliance with court?s ?Default Standard for Discovery of Electronic Documents? since plaintiff did not raise or discuss issue of e-discovery during initial conferences nor provide a compelling reason to re-open discovery other than its perceived lack of a significant amount of emails

Nature of Case: Negligent misrepresentation and breach of fiduciary duty

Electronic Data Involved: Email

Escobar v. City of Houston, 2007 WL 2900581 (S.D. Tex. Sept. 29, 2007)

Dec 01 2007

Key Insight: Adverse-inference instruction not warranted where there was no showing that relevant electronic communications were destroyed or that destruction occurred in bad faith; officers involved in the shooting were not likely to have used email to communicate about the event in the day after it occurred, and, under HPD’s document retention and destruction policy, electronic communications records were routinely destroyed within ninety days

Nature of Case: Wrongful death action based on shooting death of 14-year-old boy by police officer

Electronic Data Involved: Records of Houston Police Department electronic communications in the 24 hours after victim’s death

APC Filtration, Inc. v. Becker, 2007 WL 3046233 (N.D. Ill. Oct. 12, 2007)

Dec 01 2007

Key Insight: Where defendant traveled 20 miles to dispose of his computer in a construction site dumpster within days of receiving notice of lawsuit, court found that defendant acted in bad faith but that sanction of default judgment was too severe since plaintiff’s claims were not “severely” or “incurably” prejudiced as a result; court instead deemed certain facts conclusively proven and ordered defendant to pay plaintiff?s reasonable attorneys? fees and costs associated with motion and related discovery

Nature of Case: Misappropriation of trade secrets and breach of employment contract

Electronic Data Involved: Computer

Archive - December 1, 2007