Archive - 2008

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Tri-County Motors, Inc. v. Am. Suzuki Motor Corp., 2008 WL 5063291 (2d Cir. Nov. 24, 2008)
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U.S. v. Treacy, 2008 WL 5062722 (S.D.N.Y. Nov. 24, 2008)
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Dong Ah Tire & Rubber Co., Ltd. V. Glasforms, Inc., 2008 WL 4786671 (N.D. Cal. Oct. 29, 2008)
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Moore v. Abbott Labs., 2008 WL 4981400 (S.D. Ohio Nov. 19, 2008)
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Lessley v. City of Madison, Ind., 2008 WL 4977328 (S.D. Ind. Nov. 20, 2008)
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Bryant v. Gardner, 587 F. Supp. 2d 951 (N.D. Ill. 2008)
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MSC Software Corp. v. Altair Eng?g, Inc., 2008 WL 4940361 (E.D. Mich. Sept. 9, 2008)
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Mintel Int?l Group, Ltd. v. Neerghen, 2008 WL 4936745 (N.D. Ill. Nov. 17, 2008)
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Naik v. Boehringer-Ingelheim Pharm., Inc., 2008 WL 4866015 (N.D. Ill. Jun. 19, 2008)
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Mabe v. Bell, 2008 WL 4911144 (D. Kan. Nov. 13, 2008)

Tri-County Motors, Inc. v. Am. Suzuki Motor Corp., 2008 WL 5063291 (2d Cir. Nov. 24, 2008)

Key Insight: Where plaintiff failed to sufficiently establish existence or relevance of emails allegedly spoliated or that defendants alleged abuses resulted from willful misconduct or gross negligence, trial court declined to impose sanctions; court of appeals affirmed

Nature of Case: Breach of contract, promissory estoppel, interference with a contract

Electronic Data Involved: Email

U.S. v. Treacy, 2008 WL 5062722 (S.D.N.Y. Nov. 24, 2008)

Key Insight: Court declined to compel government to undertake ?seemingly redundant and unquestionably burdensome? search of 15 disks in witness?s possession where defendant failed to show that documents on disk materially varied from documents already searched and reviewed by government and where government had produced responsive documents discovered in that search pursuant to Rule 16 obligations

Nature of Case: Securities fraud and conspiracy

Electronic Data Involved: Computer disks

Dong Ah Tire & Rubber Co., Ltd. V. Glasforms, Inc., 2008 WL 4786671 (N.D. Cal. Oct. 29, 2008)

Key Insight: Where defendants failed to establish custodians? possession of relevant emails beyond speculation or vague assertions, and where responding party already produced ?voluminous amounts of email,? court declined to compel production of emails from either custodian

Nature of Case: Breach of contract (non-conforming goods)

Electronic Data Involved: Emails

Moore v. Abbott Labs., 2008 WL 4981400 (S.D. Ohio Nov. 19, 2008)

Key Insight: Where defendant produced relevant emails from targeted custodians but where plaintiff sought all emails mentioning his name and where additional searching would cost $300,000, court declined to compel production of additional emails; where emails were produced in hard copy and relevant metadata could not be seen, court ordered defendants to ?determine feasibility? of electronic production and to produce in electronic form ?absent unusual circumstances?; court denied motion to compel generally where plaintiff?s requests were overbroad and unreasonable in their scope

Nature of Case: Employment discrimination

Electronic Data Involved: Emails, ESI

Lessley v. City of Madison, Ind., 2008 WL 4977328 (S.D. Ind. Nov. 20, 2008)

Key Insight: Where defendants failed to timely respond to discovery requests, failed to respond to two motions to compel, and where individual defendant testified he made no attempt to look for files or emails in response to discovery requests, Court granted motion for sanctions and issued order setting final deadline for production, barring all of defendants? objections to production except attorney-client privilege, fining defendants $1,000 and ordering payment of plaintiffs? attorney?s fees

Nature of Case: Suit for damages resulting from improper strip search

Electronic Data Involved: Emails, ESI

Bryant v. Gardner, 587 F. Supp. 2d 951 (N.D. Ill. 2008)

Key Insight: Where defendants failed to preserve laptop by continued use and by running defragmentation program, court imposed sanction of fees and costs and precluded defendants from making particular arguments that became unverifiable as result of failure to preserve; where forensic examination revealed creation of false evidence on laptop, court ordered accused defendant to show cause why matter should not be referred for prosecution

Nature of Case: Wrongful termination, discrimination

Electronic Data Involved: Laptop

MSC Software Corp. v. Altair Eng?g, Inc., 2008 WL 4940361 (E.D. Mich. Sept. 9, 2008)

Key Insight: Special Master recommended production of un-redacted source code repository, development ?twiki? and operational versions of programs at issue to experts and plaintiff?s counsel where access to current versions was ?reasonable? before experts drafted reports and where prior orders did not prohibit it; Special Master also recommended in-person confirmation that production included all required information as kept in usual course of business

Nature of Case: Theft of trade secrets

Electronic Data Involved: source code repository, development “twiki”

Mintel Int?l Group, Ltd. v. Neerghen, 2008 WL 4936745 (N.D. Ill. Nov. 17, 2008)

Key Insight: Court declined to compel compliance with subpoena seeking forensic image of third-party competitor?s computer where third party asserted it had no relevant documents on its computers, where an expert?s search confirmed that assertion and where plaintiff failed to establish third party?s possession of documents sought; regarding plaintiff?s claim that defendant?s search was incomplete where it did not include titles or phrases from documents not included in the complaint, court ordered meet and confer regarding supplemental search terms and for third party to allow forensic expert to conduct search

Nature of Case: Violation of Trade Secrets Act, Computer Fraud Abuse Act and terms of employment contract

Electronic Data Involved: ESI, hard drive

Naik v. Boehringer-Ingelheim Pharm., Inc., 2008 WL 4866015 (N.D. Ill. Jun. 19, 2008)

Key Insight: Court declined to find waiver of privilege where privileged portion of email was inadvertently produced amidst 2,300 pages and where defendant took immediate action to assert privilege, reasserted privilege at deposition, and produced a revised privilege log within five days; court also noted lack of prejudice to plaintiffs

Nature of Case: Wrongful termination

Electronic Data Involved: Privileged email

Mabe v. Bell, 2008 WL 4911144 (D. Kan. Nov. 13, 2008)

Key Insight: Court denied motion for expedited discovery to image defendants? and third parties? computers pursuant to Rule 45 where inspection sought evidence of defamation unrelated to plaintiff?s claims of fraud in connections with the sale of securities and other related fraud

Nature of Case: Securities fraud

Electronic Data Involved: Email, backup tapes, removable storage units

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