December 1, 2008 – Page 19 – Electronic Discovery Law

Peterson v. Tri-Country Metro. Transp. Dist. of Or., 2008 WL 723521 (D. Or. Mar. 14, 2008)

Dec 01 2008

Key Insight: Where emails and other documents stored on backup records were destroyed after complaint was filed, but reasons defendant began destroying such outdated mainframe reel-to-reel tapes at that time were (1) to reduce storage costs of up to $4,000 per year and (2) because data on tapes was no longer readable, and decision to destroy the unusable tapes not made by anyone who had anything to do with plaintiff, court concluded evidence did not support drawing any adverse inference from defendant?s intentional destruction of potentially probative evidence

Nature of Case: Claim for violation of FMLA

Electronic Data Involved: Emails stored on outdated mainframe reel-to-reel tapes

Thomas v. IEM, Inc., 2008 WL 695230 (M.D. La. Mar. 12, 2008)

Dec 01 2008

Key Insight: Where plaintiff wrongly served Rule 45 subpoena on defendant in attempt to avoid discovery deadline, and subpoena was not limited in terms of time or subject matter but simply requested all emails contained in designated individuals’ in-boxes as of a particular date, and defendant set forth detailed account of burden and specific estimate of staff hours and cost that would be expended to comply with subpoena, court denied plaintiff’s motion to compel defendant’s compliance with subpoena

Nature of Case: Employment discrimination and retaliation

Electronic Data Involved: Entire electronic mailboxes of key players

Commerce Benefits Group, Inc. v. McKesson Corp., 2008 WL 657838 (N.D. Ohio Mar. 6, 2008)

Dec 01 2008

Key Insight: Where plaintiff did not demonstrate that focus of the defendants’ search was not reasonably directed toward finding responsive documents, and failed to establish that relevance and necessity of any further discovery into email backup tapes outweighed burden and expense that would ensue, not to mention further delay which would certainly follow, court denied motion to compel

Nature of Case: Breach of contract

Electronic Data Involved: ESI stored on backup tapes

Kounelis v. Sherrer, 529 F. Supp. 2d 503 (D.N.J. 2008)

Dec 01 2008

Key Insight: Where defendants failed to preserve DVR footage by not recording it on to a VHS tape before the footage was overwritten on the DVR hard drive, district court modified magistrate judge’s order, finding that it was an abuse of discretion to deny plaintiff’s request for adverse inference charge for defendants’ failure to preserve evidence

Nature of Case: Prisoner asserted ? 1983 action against various prison defendants

Electronic Data Involved: Digital video recording showing altercation between prisoner and prison staff

Connor v. Sun Trust Bank, 2008 WL 623027 (N.D. Ga. Mar. 5, 2008)

Dec 01 2008

Key Insight: Because outright dismissal was too severe a sanction for spoliation in view of minimal culpability of Sun Trust and slight potential for abuse, court would give jury adverse inference instruction instead

Nature of Case: FMLA claims

Electronic Data Involved: Email

Am. Express Co. v. Goetz, 515 F.3d 156 (2nd Cir. 2008)

Dec 01 2008

Key Insight: Second Circuit found no error in trial court’s order denying plaintiff’s request to examine in their entirety numerous computer hard drives belonging to Ogilvy and American Express employees and granting the request only to the extent it involved electronic records pertinent to disputed dates of creation of two documents, since plaintiff failed to show any error in district court’s determination that ?such wholesale rummaging? through American Express’s electronic records was not appropriate

Nature of Case: Trademark infringement and misappropriation

Electronic Data Involved: Computer hard drives of employees of American Express and Ogilvy who worked on a particular ad campaign

Executive Air Taxi Corp. v. City of Bismarck, 2008 WL 564725 (8th Cir. Mar. 4, 2008)

Dec 01 2008

Key Insight: Eighth Circuit upheld district court’s order denying plaintiff’s request to have a third-party expert conduct forensic investigation of a City-owned computer to search for relevant emails that might not have been produced in discovery; district court’s findings that City had produced all relevant emails in hard copy and that forensic discovery could expose confidential or privileged materials were not clearly erroneous and in light of that factual premise there was no abuse of discretion

Nature of Case: Equal protection and substantive due process claims

Electronic Data Involved: Laptop computer of defendant’s employee

United States v. O’Keefe, 537 F.Supp.2d 14 (D.D.C. 2008)

Dec 01 2008

Key Insight: Magistrate Judge John M. Facciola held that Federal Rules of Civil Procedure may provide guidance in criminal cases in determining whether format of production by government was appropriate, and if ESI is demanded in criminal case, but request does not specify a form of production, responding party must produce ESI in form in which it is ordinarily maintained or in reasonably usable form or forms

Nature of Case: Criminal case against State Department employee for receiving, quid pro quo, gifts and other benefits for expediting visa requests

Electronic Data Involved: Hard copy and electronic files

APC Filtration, Inc. v. Becker, 2008 WL 548765 (N.D. Ill. Feb. 25, 2008)

Dec 01 2008

Key Insight: Court rejected defendants’ objections to magistrate judge’s December 21, 2008 order imposing sanctions of $99,462, upheld the December 21, 2008 order in its entirety, and ordered defendants to comply with the order by March 3, 2008

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

Electronic Data Involved: Computer

Peacock v. Merrill, 2008 WL 509636 (S.D. Ala. Feb. 22, 2008)

Dec 01 2008

Key Insight: Where defendants did not have any knowledge of a particular computer disk containing relevant evidence, much less an exact copy of that disk, when they first deposed plaintiff, and plaintiff’s prior sworn statements about the disk were conflicting, court granted defendants? motion for leave to depose plaintiff a second time on the limited issue of her knowledge of the existence of the disk and its contents

Nature of Case: Conversion, interference with business relationships, breach of fiduciary duties and conspiracy claims

Electronic Data Involved: Metadata; CD-ROM containing data retrieved from inoperable computer

Archive - December 1, 2008