December 2008 – Page 22 – Electronic Discovery Law

Leist v. GHG Corp., 2008 WL 183330 (S.D. Tex. Jan. 18, 2008)

Dec 01 2008

Key Insight: Where plaintiff alleged that former supervisor wrote memos concerning plaintiff?s alleged deficiencies after plaintiff complained about co-employee?s racist comments, that she never saw the memos and did not sign them as was normal practice with disciplinary memos, and defendant had not preserved hard drive of supervisor?s computer, court did not grant adverse inference as to contents of hard drive but found a material question of fact as to plaintiff?s retaliation claim, and denied defendant’s motion for summary judgment on retaliation claim

Nature of Case: Wrongful termination and retaliation claims

Electronic Data Involved: Hard drive, metadata

RGIS, LLC v. A.S.T., Inc., 2008 WL 186349 (E.D. Mich. Jan. 22, 2008)

Dec 01 2008

Key Insight: Court granted defendants? request for appointment of Fed. R. Civ. P. 53 special master to analyze and compare source codes of subject software prior to any discovery of proprietary source codes

Nature of Case: Copyright infringement

Electronic Data Involved: Source code for software in hand-held computers used for inventory control

Williams v. Taser Int’l, Inc., 2008 WL 192991 (N.D. Ga. Jan. 22, 2008)

Dec 01 2008

Key Insight: Where privilege log entries failed to identify who sent or received documents, disclosed little or no information about actual contents of documents, used boilerplate objections which court had previously ruled were insufficient, and court had previously ordered Taser to provide more information in privilege logs, court concluded that Taser?s unjustified delay in providing a meaningful privilege log was inexcusable, in bad faith and deserving of sanctions; Taser?s assertions of attorney client privilege and work product doctrine were deemed waived and court ordered Taser to produce all documents identified in privilege logs

Nature of Case: Wrongful death

Electronic Data Involved: Privileged email and other documents

Apsley v. Boeing Co., 2008 WL 191418 (D. Kan. Jan. 22, 2008)

Dec 01 2008

Key Insight: Where structure of Boeing?s privilege log was result of the same emails (containing legal advice) being stored in more than one email file and/or legal advice being repeated in email strings, and Boeing listed all of the email messages by Bates number where legal communication was located, but redacted only the portion of the string that contained legal communications, court concluded that log adequately supported Boeing?s claim of privilege for multiple copies of the same communication, noting: ?The organization of a privilege log for electronic documents existing in multiple locations presents a challenge. Perhaps a better method would be to list the original legal communication by date, author and recipient and thereafter indicate that the other Bates-stamped documents are copies or a repeat of the original legal communication. However, electronic discovery is an evolving practice and Boeing will not be faulted for its efforts to organize the privilege log.?

Nature of Case: Employment discrimination

Electronic Data Involved: Email

In re Hawaiian Airlines, Inc., 2008 WL 185649 (Bankr. D. Haw. Jan. 22, 2008)

Dec 01 2008

Key Insight: Although expert fees and expenses were not taxable as costs under 28 U.S.C. Sec. 1920, court ruled that, since most if not all of the work performed by Hawaiian Airlines’ computer forensics expert was directly attributable to Mesa’s spoliation of evidence (which was subject of October 30, 2007 decision imposing certain evidentiary sanctions against Mesa), the expert’s fees and expenses of approximately $80,000 would be awarded as an additional spoliation sanction

Nature of Case: Airline undergoing reorganization alleged that prospective investor (Mesa) breached confidentiality agreement and misused confidential information

Electronic Data Involved: Confidential information stored on secure website

Mazloum v. Dist. of Columbia Metro. Police Dept., 2008 WL 142869 (D.D.C. Jan. 16, 2008)

Dec 01 2008

Key Insight: Deciding various motions in limine, court found that plaintiff had presented sufficient evidence relating to destruction of surveillance videotape to demonstrate that adverse inference instruction was not barred as a matter of law; court further granted plaintiff?s motion to re-open discovery for limited purpose of conducting focused three-hour deposition of particular individual who was most knowledgeable about defendant?s video surveillance system

Nature of Case: Lebanese nightclub patron brought civil rights action against municipality, police department, and certain employees and owners of nightclub

Electronic Data Involved: Surveillance videotape

Koch Foods of Ala. LLC v. Gen. Elec. Capital Corp., 531 F.Supp.2d 1318 (M.D. Ala. 2008)

Dec 01 2008

Key Insight: Concluding that, if the Alabama Supreme Court were to confront the issue of inadvertent waiver, it would likely adopt more comprehensive and sensitive totality-of-the-circumstances analysis, district court upheld magistrate judge?s ruling that plaintiff?s inadvertent production of privileged email among 3,758 pages of documents did not effect waiver

Nature of Case: Dispute over ownership of certain poultry processing equipment

Electronic Data Involved: Privileged email

Eckhardt v. Bank of Am., N.A., 2008 WL 111219 (W.D.N.C. Jan. 9, 2008)

Dec 01 2008

Key Insight: Where plaintiff credibly argued that deposition testimony identified responsive but unproduced documents, court ordered defendant to certify that it had thoroughly searched for all responsive documents and to identify any documents or sets of documents that had been deleted, erased, or otherwise destroyed; although court would not require defendant to restore backup media at this juncture, it ordered defendant to identify what otherwise responsive but not readily accessible documents might be retained in archive form, on backup tapes/discs, or on any other backup media; court further ordered defendant to fully identify computers used by decision makers in plaintiff’s termination

Nature of Case: Alleged violations of Americans with Disabilities Act

Electronic Data Involved: Email and other ESI

Sharp v. City of Palatka, 2008 WL 89762 (M.D. Fla. Jan. 8, 2008)

Dec 01 2008

Key Insight: No adverse inference warranted for alleged spoliation of audio recordings, since plaintiff failed to establish first element that recordings ever existed; however, plaintiff would be free to elicit testimony concerning the alleged recordings at trial

Nature of Case: Employment litigation

Electronic Data Involved: Audio recordings of two conversations

Hubbard v. Potter, 247 F.R.D. 27 (D.D.C. 2008)

Dec 01 2008

Key Insight: Court denied plaintiffs? request for additional round of pre-certification discovery on defendant?s process of preserving, locating and producing responsive documents, since some electronic documents had been produced and only basis for motion was general ?paucity? of defendant’s document production and ?theoretical possibility? that other electronic documents might exist

Nature of Case: Putative class action against Postmaster General by deaf postal employees

Electronic Data Involved: Unspecified electronic documents

Archive - December 2008