December 2008 – Page 4 – Electronic Discovery Law

Aecon Buildings Inc. v. Zurich N. Am., 253 F.R.D. 655 (W.D. Wash. 2008)

Dec 01 2008

Key Insight: Court imposed significant monetary sanction upon finding that defendant violated both the letter and spirit of discovery rules where defendant deliberately concealed existence of electronically stored information by making repeated misrepresentations regarding completeness of production and the existence of additional information and for defendant?s failure to produce the necessary privilege log

Nature of Case: Bad faith failure to defend or indemnify

Electronic Data Involved: Notes made in electronically stored case file

Jones v. Jones, 995 So.2d 706 (Miss. 2008)

Dec 01 2008

Key Insight: Where party admitted to deliberate destruction of personal computer and was thus unable to produce it in response to discovery requests and where party also admitted to perjury, Supreme Court held chancellor abused his discretion in failing to impose sanctions pursuant to his obligation to ?consider sanctions that are severe enough to deter other from pursuing similar action? and remanded for reconsideration accordingly

Nature of Case: Divorce

Electronic Data Involved: Computer

Williams v. Long, 585 F. Supp. 2d 679 (D. Md. 2008)

Dec 01 2008

Key Insight: Printouts from government websites were self-authenticating pursuant to ER 902(5) where the printouts were published online by a public authority and where the printouts contained identifying information, including the URL and the name of the public entity; acquisition of website printout through FOIA request where website was not available to the public did not prevent self-authentication of the printout; printouts were exceptions to the rule of hearsay pursuant to ER 803(8)

Nature of Case: Violations of FLSA and Wage and Hour Law

Electronic Data Involved: Hard copy print outs of government websites

Llamas v. State, 270 S.W. 3d. 274 (Tex. App. 2008)

Dec 01 2008

Key Insight: Appellate court found no abuse of discretion in trial court?s decision to admit surveillance footage of armed robbery into record after State provided testimony regarding chain of custody and where officer in charge of transferring data to DVD testified DVD contained exact replica of the original footage

Nature of Case: Capital murder

Electronic Data Involved: Surveillance footage

Superior Prod. P?ship d/b/a/ PBSI v. Gordon Auto Body Parts Co., Ltd., 2008 WL 5111184 (S.D. Ohio Dec. 2, 2008)

Dec 01 2008

Key Insight: Court ordered electronically stored documents produced in native format in light of preference for such production in Rule 26 and where no obstacles to production were articulated; where plaintiff requested production of large volume of relevant documents and where deposition witness indicated that the information would be easily retrieved from defendant?s electronic database, court recognized potential burden to defendant and ordered production of sampling of documents to allow for determination of the need to produce the rest; court also ordered parties to meet and confer regarding the necessary volume of production of documents related to cost where documents were necessary to address the accuracy of previously produced summary and thus production of all such documents was not required, where information was available in electronic format, though, defendants were ordered to produce it

Nature of Case: Predatory pricing

Electronic Data Involved: ESI

Thermodyne Corp. v. 3M Co., 593 F. Supp. 2d 972 (N.D. Ohio 2008)

Dec 01 2008

Key Insight: Court denied plaintiff?s motion in limine for adverse inference for alleged spoliation, despite evidence that files were deleted, where plaintiff offered only conjecture regarding the relevance of the allegedly spoliated documents, where defendant had the means to recover the allegedly spoliated contents of the files and did not, and where defendant failed to show plaintiff acted deliberately with the intent to deprive plaintiffs of the data

Nature of Case: Theft of trade secrets

Electronic Data Involved: Email, ESI

Orbit One Commc?ns, Inc. v. Numerex Corp., 2008 WL 4778133 (S.D.N.Y. Oct. 31, 2008)

Dec 01 2008

Key Insight: Where defendant/successor corporation acquired computer and server utilized by plaintiff/predecessor corporation in pre-acquisition operation of predecessor company but plaintiff asserted privilege as to certain pre-acquisition documents in response to subpoena from defendant, court ruled documents were protected by privilege, despite presence on acquired hardware, where plaintiff removed allegedly privileged and personal documents prior to defendant?s access and control of hardware and thus had a reasonable expectation of privacy; court ordered production of non-privileged materials and categorical privilege log and declined to sanction plaintiff for removal of documents from acquired hardware where plaintiff acted to preserve the documents and agreed to produce non-privileged material

Nature of Case: Breach of contract

Electronic Data Involved: ESI

New Albertsons Inc. v. Superior Court, 86 Cal. Rptr. 3d 457 (Cal. Ct. App. 2008)

Dec 01 2008

Key Insight: Court issued writ of mandate vacating award of sanctions against defendant for spoliation of video and photographic evidence where trial court had no statutory or inherent authority to order sanctions absent defendant?s violation of a court order or sufficiently egregious or exceptional circumstances and, where by failing to timely move to compel further response upon Albertson?s alleged deficient production, plaintiffs waived their rights to do so

Nature of Case: Negligence and premises liability

Electronic Data Involved: Video and photographic evidence

Bray & Gillespie Mgmt. LLC v. Lexington Ins. Co., 2008 WL 5479701 (M.D. Fla. Nov. 25, 2008)

Dec 01 2008

Key Insight: Where documents produced by plaintiffs had been printed into hard copy and then scanned into electronic format and produced on CD, Special Master found that documents had not been produced as they were kept in the ordinary course of business pursuant to Rule 34 and recommended plaintiffs be ordered to produce an index identifying documents responsive specifically to moving party?s requests; court adopted Special Master?s recommendation in subsequent opinion, 2008 WL 5120696 (M.D. Fla. Dec. 4, 2008)

Nature of Case: Insurance coverage and related claims

Electronic Data Involved: Email, unspecified ESI

Bray & Gillespie Mgmt. LLC v. Lexington Ins. Co., 2009 WL 71678 (M.D. Fla. Jan. 8, 2009)

Dec 01 2008

Key Insight: Where plaintiff produced electronically stored information on an expedited basis pursuant to court order and did not perform a privilege review of the production, but where substantial steps were taken to protect privilege during the collection phase of discovery and where those efforts were thwarted by technical mistakes and human error, court granted plaintiff?s motion for a protective order finding the privilege was not waived by the expedited production and ordering defendants to return or destroy any privilege encountered ?in the ordinary course of trial preparation?; court acknowledged outstanding issue of fact that could affect waiver as to individual documents and indicated its willingness to resolve such questions in response to an appropriate motion to do so

Nature of Case: Insurance coverage and related claims

Electronic Data Involved: Hard drive, ESI

Archive - December 2008