December 1, 2009 – Page 18 – Electronic Discovery Law

Chevron USA, Inc. v. M & M Petroleum Servs., Inc., 2009 WL 2431926 (C.D. Cal. Aug. 6, 2009)

Dec 01 2009

Key Insight: Where court found defendant had perjured himself, including making untrue statements about the existence of relevant evidence, had willfully disobeyed the court?s order to produce ?substantial documents,? and had knowingly and intentionally either destroyed or ordered destroyed relevant electronically stored information, court ordered adverse inference and monetary sanctions

Nature of Case: Lawsuit arising from defendant’s breach of contract and defendant’s undereporting of revenue and underpayment of taxes

Electronic Data Involved: ESI, hard copy

El Badrawi v. Dep?t Homeland Sec., 258 F.R.D. 198 (D. Conn. 2009)

Dec 01 2009

Key Insight: Granting in part and denying in part defendant?s motion to compel production of printouts and electronic information pertaining to defendant from government?s National Crime Information Center Database, court ordered portions of the information likely to lead to weakening of government programs (and other alleged harms) and subject to the law enforcement privilege redacted but for the remaining information to be produced; redactions were dictated by the court upon en camera review

Nature of Case: Abuse of process claim arising from alleged improper detention

Electronic Data Involved: All documents related to plaintiff from the National Crime Information Center Database

Ojeda-Sanchez v. Bland Farms LLC, 2009 WL 2365976 (S.D. Ga. July 31, 2009)

Dec 01 2009

Key Insight: In unpaid wages case, court ordered production of data from database in native format ?so that the metadata [could] be examined,? where plaintiffs demonstrated a particular need for the information, i.e., the need to determine how workers? pay was calculated; court excused defendants from the need to produce the information in Excel format to the extent the files requested were too large to export

Nature of Case: Unpaid wages

Electronic Data Involved: ESI from database

Peterson v. Bernardi, 2009 WL 2243988 (D.N.J. July 24, 2009)

Dec 01 2009

Key Insight: Where plaintiff sought the return of allegedly inadvertently produced privileged documents, court found most documents were not actually privileged and thus not subject to return and noted that even if the documents had been privileged, plaintiff failed to establish that all elements of FRE 502 were met such that waiver did not occur; as to nine documents determined to be ?obviously work product,? and in light of the facts of the case (involving the wrongful conviction of an innocent man), the court found that ?the interests of fairness and justice? demanded their return

Nature of Case: Wrongful imprisonment

Electronic Data Involved: Inadvertently produced communications and other allegedly privileged documents (format unspecified)

State v. Bowser, 2009 WL 2308068 (Wis. Ct. App. July 30, 2009)

Dec 01 2009

Key Insight: Trial court did not abuse discretion by denying defendant?s motion for a copy of the hard drive containing incriminating child pornography and granting State?s motion for a protective order requiring defendant?s forensic expert to conduct examination of the hard drive pursuant to Department of Justice protocol which required the examination be undertaken at government offices under strict guidelines intended to prevent further dissemination of the images

Nature of Case: Possession of child pornography

Electronic Data Involved: Hard drive

Mancia v. Mayflower Textile Servs. Co., 2009 WL 2252151 (D. Md. July 28, 2009)

Dec 01 2009

Key Insight: Where plaintiffs presented evidence of defendants? discovery violations, including defendants? failure to produce all relevant evidence in its possession and ?using computers to generate records for some plaintiffs ?in a piecemeal fashion??, among other things, court granted plaintiffs motion to compel and also scheduled show cause hearing for defendants to show why the court should not order as a sanction ?that Plaintiffs be permitted, at the expense of [the defendants] and their counsel, to have access to a mirror image, forensic copy of the electronically stored information of [the defendants] in order to search for documents responsive to their production requests?

Nature of Case: Violations of the Fair Labor Standards Act

Electronic Data Involved: ESI

Bonn v. City of Omaha, 2009 WL 1740783 (D. Neb. June 18, 2009)

Dec 01 2009

Key Insight: Court found the requested electronic discovery ?not reasonably accessible? due to burden and cost and because the expense of the discovery outweighed the likely benefit and denied plaintiff?s motion to compel production of relevant emails where defendant stated they had already retrieved and produced all responsive emails from key individuals containing search terms proposed by plaintiff?s counsel

Nature of Case: Wrongful discharge

Electronic Data Involved: ESI

HSH Nordbank AG N.Y. Branch v. Swerdlow, 2009 WL 2223476 (S.D.N.Y. July 24, 2009)

Dec 01 2009

Key Insight: Court ordered inadvertently produced documents returned where documents were protected by attorney-client privilege and the common interest doctrine, where plaintiff was sufficiently careful in its privilege review, inadvertently produced only nine documents out of 250,000, and promptly sought their return, and where the parties protective order provided that inadvertent production would not result in waiver

Nature of Case: Breach of contract

Electronic Data Involved: Privilege communications

Sentis v. Shell Oil Co., 559 F.3d 888 (8th Cir. 2009)

Dec 01 2009

Key Insight: Where, when imposing discovery sanctions, trial court improperly relied on unreliable evidence of misconduct by plaintiff, including accusations of bribery proffered by defendant following receipt of an anonymous phone tip, where the other findings in support of the sanction were ?close questions,? and where there were accusations of judicial bias and the appearance of judicial partiality, circuit court of appeals reversed the judgment of the district court dismissing plaintiff?s claims and remanded the matter for further proceeding before a different judge

Nature of Case: Breach of contract

Electronic Data Involved: ESI, email

Ford Motor Co. v. U.S., 2009 WL 2176657 (E.D. Mich. July 21, 2009)

Dec 01 2009

Key Insight: Court granted in part and denied in part plaintiff?s motion to compel the government to produce documents in nine categories, including compelling the government to provide declarations outlining its search methodology and efforts and finding that the government need not attempt to recover emails that had been overwritten because of undue burden and costs, among other things; court rejected government argument that it had not produced a privilege loge because ?producing such a log would defeat [its] unduly burdensome objections? and ordered an ?adequately detailed privilege log for the responsive documents that it withholds from production?

Nature of Case: Action to recover interest accrued on overpayments of corporate income tax

Electronic Data Involved: ESI

Archive - December 1, 2009