December 1, 2009 – Page 11 – Electronic Discovery Law

People v. Clevenstine, 891 N.Y.S.2d 511 (N.Y. App. Div. 2009)

Dec 01 2009

Key Insight: Stating that ?authenticity is established by proof that the offered evidence is genuine and that there has been no tampering with it,? and that ?the foundation necessary to establish these elements may differ according to the evidence,? court found computer disk containing instant messages was properly authenticated and admitted into evidence where ?both victims testified they had engaged in instant messaging with defendant,? where an investigator testified that he had retrieved the messages from defendant?s computer, where MySpace ?explained the messages?had been exchanged by users of the accounts created by the defendant and the victims,? and where his wife recalled seeing such conversations on defendant?s computer

Nature of Case: Criminal

Electronic Data Involved: Disk containing instant messages

Ergo Licensing, LLC v. Carefusion 303, Inc., 263 F.R.D. 40 (D. Me. 2009)

Dec 01 2009

Key Insight: Court found no waiver of privilege as to 31 pages of inadvertently produced documents (out of 540) where plaintiff took reasonable precautions to prevent the disclosure, including conducting a multi-part privilege review, and where plaintiff acted promptly to rectify the inadvertent production as soon as it became aware of it; in so holding, court rejected defendant?s assertions that plaintiff?s failure to ?independently recognize? the error in production had bearing on the issue and that fairness weighed in favor of waiver where the documents directly supported its defense

Nature of Case: Patent ligitation

Electronic Data Involved: Privileged email, ESI

In re Nuvaring Prod. Liab. Litig., 2009 WL 2486330 (E.D. Mo. Aug. 11, 2009)

Dec 01 2009

Key Insight: Court denied defendants? motion for cost sharing for their review and production of electronically stored information where the parties had implicitly agreed to be responsible for their own expenses, where plaintiffs already took steps to eliminate the cost to defendants of repeatedly producing documents, and where defendants failed to establish that plaintiffs? request had caused undue burden or expense or that they would in future; court instructed defendants to file motions for protective orders specifically identifying the requests creating the burden and expense to allow the court to address the objections

Nature of Case: Products liability

Electronic Data Involved: ESI

Amobi v. D.C. Dep?t of Corrs., 262 F.R.D. 45 (D.D.C. 2009)

Dec 01 2009

Key Insight: In this opinion authored by Magistrate Judge Facciola, the court conducted an analysis of waiver pursuant to FRE 502 and found that the attorney work-product privilege was waived by the inadvertent production of an attorney-prepared memorandum where defendants claimed ?several reviews of the documents?were undertaken? but offered no indication of the methodology used to review documents for privilege ?let alone any explanation of why these efforts were?reasonable in the context of the demands made upon the defendants? and thus failed to meet their burden of proving that the privilege was not waived

Nature of Case: Claims arising from DOC officer’s removal from duty following an altercation with an inmate

Electronic Data Involved: Attorney-prepared memorandum

Johnson v. U.S. Bank Nat?l Assoc., 2009 WL 4682668 (S.D. Ohio Dec. 3, 2009)

Dec 01 2009

Key Insight: Court granted motion to serve preservation subpoena on third-party prior to the Rule 26(f) conference where plaintiff showed good cause for such a subpoena, including the potential relevance of the documents and the danger of spoliation where the company had been ?dormant? since 2006, and where the subpoena was narrowly tailored to prevent spoliation and did not impose an immediate obligation to produce documents

Nature of Case: Class action

Electronic Data Involved: ESI

In re McKesson Governmental Entities Average Wholesale Price Litig., 2009 WL 3706898 (N.D. Cal. Nov. 4, 2009)

Dec 01 2009

Key Insight: Where government agency objected to defendants? subpoena for the production of documents previously produced in a separate litigation on grounds of undue burden and cost based on the assertion that it needed to re-review all documents prior to production because some documents were subject to the deliberative process privilege and others were highly confidential, court held that the privilege had been waived by the agency?s failure to object in its initial response and by the production in separate litigation, ordered the documents produced under the POD ?Confidential, For Outside Attorney Eyes Only? and ordered defendants to bear the costs ?of copying and producing the documents in electronic form?

Nature of Case: Allegations that defendants artificially increased the published price of prescription drugs

Electronic Data Involved: ESI previously produced in separate litigation and maintained in database by third party

Comrie v. Ipsco, 2009 WL 4403364 (N.D. Ill. Nov. 30, 2009)

Dec 01 2009

Key Insight: Where defendants claimed a privileged email was inadvertently produced and thus protected from waiver but failed to support their assertion with facts, court ruled defendants failed to meet their burden of proving that the disclosure was inadvertent or that they took reasonable steps to prevent such disclosure and that privilege was therefore waived; court also found that the email fell within the fiduciary exception to privilege

Nature of Case: Claims brought pursuant to Employee Retirement Income Security Act (ERISA)

Electronic Data Involved: Privileged email

Carolina Materials, LLC v. Continental Cas. Co., 2009 WL 4611519 (W.D.N.C. Dec. 1, 2009)

Dec 01 2009

Key Insight: Court granted motion to compel third party examination of plaintiff?s relevant computers and servers but, where one such server contained data belonging to entities not party to the litigation, court granted plaintiff?s motion for a protective order and prohibited defendant from creating a forensic copy of all programs and data on that server and prohibited defendant from viewing the data belonging to the non-parties; court also ordered plaintiff to provide an explanation for the disappearance or destruction of materials that were no longer available for production

Nature of Case: Insurance contract dispute

Electronic Data Involved: ESI on relevant computers and servers

U.S. v. Cameron, 2009 WL 4544928 (D. Me. Nov. 30, 2009)

Dec 01 2009

Key Insight: Where following an order to produce relevant laptops for defendant?s expert to examine the government represented its lack of custody of such laptops, save one, and that the laptop in its possession did not contain relevant evidence but did contain materials statutorily prohibited from dissemination, court amended order to explicitly relieve the Government of the obligation to produce materials not in its possession or to produce the laptop containing materials restricted from dissemination by statute; court?s opinion explicitly affirmed defendant?s right to question the Government regarding its failure to preserve and to bring any newly discovered evidence to the court?s attention

Nature of Case: Criminal

Electronic Data Involved: Hard drive

Paylan v. St. Mary?s Hosp. Corp., 983 A.2d 56 (Conn. App. Ct. 2009)

Dec 01 2009

Key Insight: Where trial court precluded plaintiff from presenting evidence of a court order requiring defendant to preserve the relevant hard drive but expressly allowed the presentation of evidence concerning the destruction of the hard drive and deferred ruling on the whether to give an adverse inference instruction, and where plaintiff failed to present evidence of defendant?s intentional destruction of the hard drive, a necessary element when seeking an adverse inference, court of appeals ruled trial court?s preclusion of evidence of the order was error, but that the error was harmless, and affirmed the judgment of the trial court

Nature of Case: Employment discrimination

Electronic Data Involved: Hard drive

Archive - December 1, 2009