December 2008 – Page 7 – Electronic Discovery Law

Truckstop.net, LLC, v. Sprint Corp., 547 F.3d 1065 (9th Cir. 2008)

Dec 01 2008

Key Insight: Where defendant appealed District Court order for plaintiff to return inadvertently produced email and for privileged portions of the email to be redacted, Ninth Circuit dismissed appeal for lack of jurisdiction pursuant to the collateral order doctrine where the alleged harm from disclosure had already occurred and where defendant did not allege additional harm

Nature of Case: Contract dispute

Electronic Data Involved: Privileged email

SD Protection, Inc. v. Del Rio, 587 F. Supp. 2d 429 (S.D.N.Y. 2008)

Dec 01 2008

Key Insight: Where, despite repeated court orders directing production, plaintiff failed to produce an un-redacted email upon which the case turned and claimed the email inaccessible because the computer on which it was stored had been destroyed and where plaintiff failed to pay court ordered sanctions for its failure to produce, court lifted earlier stay of dismissal and ordered plaintiff to pay additional $5000 sanction plus defendant?s attorneys fees and costs

Nature of Case: Breach of contract

Electronic Data Involved: Email

Opperman v. Allstate N.J. Ins. Co., 2008 WL 5071044 (D.N.J. Nov. 24, 2008)

Dec 01 2008

Key Insight: Court granted plaintiffs? request for access to third party?s proprietary software where court determined software and its underlying processes were relevant to plaintiffs? claims and that all less intrusive means to obtain the necessary information had been exhausted; court?s order allowed access to the software by plaintiffs? expert but protected the confidentiality of the information with a protective order that placed limitations on who may access the software and limited the use of the information solely to the litigation

Nature of Case: Challenge to accuracy of insurance company estimates for fire damage

Electronic Data Involved: Proprietary software

Alcon Mfg., Ltd. V. Apotex, Inc., 2008 WL 5070465 (S.D. Ind. Nov. 26, 2008)

Dec 01 2008

Key Insight: Court ordered return of electronically produced document containing privileged notations where document was inadvertently produced due to an ?electronic break error? and where upon realizing the inadvertent production, plaintiff objected to the use of the document and sought its return; in so holding, court considered applicability of ER 502 and a protective order between the parties that contemplated the non-waiver of privilege upon inadvertent production

Nature of Case: Patent lawsuit

Electronic Data Involved: Electronically produced document

Ajaxo Inc. v. Bank of Am. Tech. and Operations, Inc., 2008 WL 5101451 (E.D. Cal. Dec. 2, 2008)

Dec 01 2008

Key Insight: Where plaintiff failed to produce requested expert information in searchable format, pursuant to court order, until after defendants filed a motion for sanctions, but where plaintiffs failures were not willful and where prejudice to defendants was minimal, court ordered plaintiff to bear costs of defendants? motion to compel but declined to strike plaintiffs? expert or impose other severe sanctions

Nature of Case: Patent lawsuit

Electronic Data Involved: Expert’s report in searchable format

In Re U-Haul Class Action Tammy Koceinda, 2008 WL 5071996 (D. Conn. Nov. 21, 2008)

Dec 01 2008

Key Insight: Court declined to compel production of emails sent between plaintiff, her attorney, and her husband, where husband was an attorney, although not the attorney of record, and where he acted as plaintiff?s ?personal attorney? and provided legal advice regarding ongoing litigation

Nature of Case: Class action breach of contract

Electronic Data Involved: Email

In re Zurn Pex Plumbing Prod. Liab. Litig., 20008 WL 5104173 (D. Minn. Nov. 26, 2008)

Dec 01 2008

Key Insight: Court compelled production of deponent to answer specifically tailored questions regarding retention of electronically stored documents where plaintiff suspected spoliation due to defendant?s failure to timely issue preservation notices and where inquiry into retention policies would assist in narrowing scope of discoverable electronic materials; court also compelled production of identity of author of relevant email

Nature of Case: Products liability

Electronic Data Involved: Document retention policies, email

AIU Ins. Co. v. TIG Ins. Co., 2008 WL 5062030 (S.D.N.Y. Nov. 25, 2008)

Dec 01 2008

Key Insight: Court granted motion to compel additional electronic searching as to certain custodians where defendant established their potential relevance and where plaintiff failed to establish additional search would be unduly burdensome or that custodians had no relevance to litigation; court noted that plaintiff?s assertions that documents referencing custodians at issue were drafted before the popularization of email does not excuse obligation to search for potentially relevant materials even where the search may be ?fruitless?

Nature of Case: Breach of reinsurance contracts

Electronic Data Involved: ESI, email of particular custodians

Ford Motor Co. v. Hall-Edwards, 997 So.2d 1148 (Fla. Dist. Ct. App. 2008)

Dec 01 2008

Key Insight: Where trial court granted plaintiff access to all defendant?s databases, including an exclusively privileged database, based upon an unproven assumption regarding ease of production and upon defendant?s violation of a prior court order by failing to provide sufficient information regarding its search efforts, appellate court quashed order noting that defendant?s violations were correctable and non-prejudicial and thus could not justify invasion of the attorney-client privilege or work product

Nature of Case: Personal injury

Electronic Data Involved: Database

In re County of Erie, 546 F.3d 222 (2008)

Dec 01 2008

Key Insight: Petition for Mandamus granted and order to produce privileged emails vacated where appellate court found that defendants? claim of attorney-client privilege had not been waived because defendants had not claimed reliance upon privileged advice as a defense and thus had had not put the advice ?at issue?

Nature of Case: Class action challenging constitutionality of strip- search policy

Electronic Data Involved: Emails

Archive - December 2008