December 2007 – Page 13 – Electronic Discovery Law

Rafael Town Center Investors, LLC v. Weitz Co., LLC, 2007 WL 2261376 (N.D. Cal. Aug. 6, 2007)

Dec 01 2007

Key Insight: Court ruled plaintiff was entitled to monetary sanctions arising from defendant’s document production, stating: “It is undisputed that the first two productions were essentially unusable, and that as a result, plaintiff’s law firm wasted a considerable amount of time attempting to organize the electronic documents. It was the responsibility of defense counsel to ensure that the document production complied with Rule 34(b)(i), and to oversee the work of defendant’s document management company.”

Nature of Case: Construction litigation

Electronic Data Involved: Electronic documents

Lockheed Martin Corp. v. L-3 Communications Corp., 2007 WL 2209250 (M.D. Fla. July 29, 2007)

Dec 01 2007

Key Insight: Court ordered plaintiff to produce certain documents related to forensic examinations of former employee’s computers, including electronic documents or portions thereof retrieved from the computers, and all related “fact” work product since substantial need had been demonstrated; court further ordered plaintiff’s IT employee to answer questions regarding forensic examinations at deposition, finding inadequate plaintiff’s proposal that witness respond to unanswered questions through an errata sheet since LMC’s counsel instructed witness not to testify on broad areas of inquiry and counsel was unable to fully develop lines of questioning

Nature of Case: Misappropriation of trade secrets

Electronic Data Involved: Results of forensic computer analysis

Healthcare Advocates, Inc. v. Harding, Earley, Follmer & Frailey, 497 F.Supp.2d 627 (E.D. Pa. 2007)

Dec 01 2007

Key Insight: Spoliation sanctions were not warranted for defendant’s failure to preserve copies of screenshots that may have been automatically stored in temporary cache files of defendant’s computers, since plaintiff’s counsel’s preservation letter said nothing about preserving temporary cache files, defendant had no reason to believe such files were relevant, files were deleted automatically and not through any affirmative action by defendant, defendant produced forensic images of its hard drives, and plaintiff established little if any prejudice from loss of cache files

Nature of Case: Copyright infringement and violations of the Computer Fraud & Abuse Act

Electronic Data Involved: Copies of archived website screenshots automatically stored in temporary cache files of defendant’s computers

Bishop v. Toys ?R? US-NY, LLC, 2007 WL 2042913 (S.D.N.Y. July 13, 2007)

Dec 01 2007

Key Insight: Overruling plaintiff’s objection that magistrate judge’s sanctions order did not go far enough and should have required defendant to retain a computer forensic expert to examine surveillance equipment to determine whether deleted images were recoverable, court found that order was neither clearly erroneous nor contrary to law since defendant had produced affidavit of individual who personally installed and serviced the surveillance system who stated that he inspected the surveillance data system and determined that the images were not recoverable

Nature of Case: Customer asserted federal civil rights claims arising from his detention by store security guards

Electronic Data Involved: Surveillance video

J.B. Hunt Transp., Inc. v. Adams, 2007 WL 2080391 (E.D. Mich. July 19, 2007)

Dec 01 2007

Key Insight: Court found that no adverse inference was warranted where plaintiff preserved driver logs and repair documents for the requisite amount of time provided in applicable federal regulations, then discarded them in accordance with its standard business practices, since other uncontroverted evidence existed which rebutted the requested adverse inference

Nature of Case: Insurance coverage

Electronic Data Involved: Driver logs and repair records for tractor and trailer involved in accident

In re Subpoena to Chronotek Sys., Inc., 2007 WL 2177013 (S.D. Tex. July 27, 2007)

Dec 01 2007

Key Insight: Magistrate judge adopted special master’s recommendations regarding motion to compel production of source code, and ordered Chronotek to produce the portions of its source code, if any, that incorporated particular technology subject to an appropriate protective order, or, if source code did not incorporate particular technology at issue, affidavit of knowledgeable person attesting to same

Nature of Case: Patent litigation

Electronic Data Involved: Source code

Nat?l Union Fire Ins. Co. of Pittsburgh v. Clearwater Ins. Co., 2007 WL 2106098 (S.D.N.Y. July 21. 2007)

Dec 01 2007

Key Insight: Court denied motion to compel production of email from 113 backup tapes, estimated to cost between $45,200 and $79,100, plus attorney’s time in reviewing documents, since defendant had not sufficiently demonstrated that responsive emails relating to settlement negotiations existed on the backup tapes, which covered time periods that were months after the settlement was reached; court noted that if moving party wished to pay to restore the backup tapes, it may do so

Nature of Case: Insurance coverage

Electronic Data Involved: Email stored on backup tapes

PML N. Am., LLC v. ACG Enters. of NC, Inc., 2007 WL 2156276 (E.D. Mich. July 26, 2007)

Dec 01 2007

Key Insight: Where defendant was insolvent and unable to fund litigation expenses or pay monetary sanctions imposed for electronic discovery abuses (which included among other things the unexplained disappearance of a hard drive from CEO’s laptop), and in light of CEO’s active participation in the fraud, breach of contract and e-discovery abuses, court granted plaintiff’s motion for leave to amend complaint to add defendant’s CEO as an individual defendant

Nature of Case: Fraud and breach of contract

Electronic Data Involved: Hard drive

Wachtel v. Guardian Life Ins., 2007 WL 1752036 (D.N.J. June 18, 2007) (Unpublished)

Dec 01 2007

Key Insight: Court found that plaintiff made a prima facie showing that crime-fraud exception to attorney-client privilege may apply with respect to the documents identified in Health Net’s privilege log, citing numerous instances of discovery misconduct including Health Net’s failure to disclose to the court during three years of discovery that emails older than 90 days were never searched when proper discovery requests sought historic information from a period more than 90 days earlier

Nature of Case: Class action relating to administration of health care plans

Electronic Data Involved: Email

Pace v. Int’l Mill Serv., Inc., 2007 WL 1385385 (N.D. Ind. May 7, 2007)

Dec 01 2007

Key Insight: Where defendant had produced requested work orders in .pdf format and then in other electronic formats in attempts to resolve plaintiff’s complaints, court denied plaintiff’s motion to compel and for sanctions since plaintiff could not show that production request called for any specific format and court could not conclude that defendant had failed to meet such request

Nature of Case: Employment discrimination

Electronic Data Involved: Work orders

Archive - December 2007