December 2009 – Page 13 – Electronic Discovery Law

People v. Vallejo, 2009 WL 3925232 (Cal. Ct. App. Nov. 19, 2009)(Unpublished)

Dec 01 2009

Key Insight: Court found no abuse of discretion for admitting table summarizing defendant?s sales activities for the relevant time period where the corporate investigator of defendant?s suspected theft prior to his prosecution testified that the report was generated by a particular software in the ordinary course of business and where there was the ?logical inference? based on certain facts that the report was prepared ?at or near? the time of the events reported therein as is required by California Evid. Code section 1271 to authenticate a document as a business record

Nature of Case: Grand theft from employer

Electronic Data Involved: Report of defendant’s sales activities

N.A. Rescue Prods., Inc. v. Bound Tree Medical, LLC, 2009 WL 4110889 (S.D. Ohio Nov. 19, 2009)

Dec 01 2009

Key Insight: Where third party sought sanctions/costs and attorney?s fees for plaintiff?s alleged violation of its obligation to avoid the imposition of undue burden or expense on a non-party following the third party?s expenditure of more than $50,000 in responding to plaintiff?s subopoena (including the cost of converting electronically stored information for review), court denied third party?s motion where plaintiff?s subpoena sought relevant documents within a reasonable time frame and where third party voluntarily complied with the subpoena without conditioning its compliance on reimbursement

Nature of Case: Misappropriation of trade secrets

Electronic Data Involved: ESI

In re Boxer Mgmt. Co., 2009 WL 4250123 (Tex. Ct. App. Sept. 3, 2009)

Dec 01 2009

Key Insight: Court of appeals conditionally granted petition for writ of mandamus and directed the trial court to vacate its order compelling the deposition of defendant?s corporate representative regarding the adequacy of defendant?s response to discovery (using specific question approved by the trial court) where such inquiry would concern the mental impressions of general counsel responsible for discovery (and the likely deponent) which are subject to work product protection; court also determined that absent evidence of discovery abuse, the deposition would constitute an impermissible fishing expedition

Nature of Case: Premesis liability

Electronic Data Involved: ESI

Loyal v. State, 2009 WL 2884147 (Ga. Ct. App. Sept. 10, 2009)

Dec 01 2009

Key Insight: Vice President?s testimony that electronic security log was kept in regular course of business and that data was entered into the log contemporaneously with the events themselves was sufficient to establish a foundation for the admission of the log as a business record where the exception does not require that the foundation be laid by the custodian of records, but only that ?the record offered to prove a transaction be made in the regular course of business and that it is the regular course of business to make the record at the time of the act or transaction?; a witness?s lack of personal knowledge regarding how the records were created ?merely affects the weight given to the evidence?

Nature of Case: Criminal/theft

Electronic Data Involved: Security log indicating when warehouse was locked and unlocked, and the PIN used to access the facility

Benedict College v. Nat?l Credit Systs., 2009 WL 3839473 (D.S.C. Nov. 16, 2009)

Dec 01 2009

Key Insight: Rejecting defendant?s claims that discovery was produced as maintained in the usual course of business where documents were printed, copied, bates labeled and then converted to .pdf format and defendant?s objections that plaintiff?s requests were overly broad and burdensome, court granted plaintiff?s motion to compel and ordered defendant to produce all responsive documents, organized and labeled according to each request, and to produce to plaintiff and the court a ?faithful electronic copy? of its relevant database with metadata intact to allow for inspection if the need arose; doubting the sufficiency of defendant?s production of email, court ordered company?s president to order a diligent search for responsive documents and to certify by affidavit (using language provided by the court) that such a search was conducted and to provide an explanation for any missing or unfound documents

Nature of Case: Beach of contract

Electronic Data Involved: ESI, emails

Bennett v. Martin, 2009 WL 4048111 (Ohio Ct. App. Nov. 24, 2009)

Dec 01 2009

Key Insight: Where defendants failed to adequately respond to discovery in defiance of two court orders, trial court did not abuse its discretion in ordering forensic imaging of certain of defendants? hard drives to ensure that all responsive documents had been produced but erred in ?not providing adequate protections to safeguard the confidentiality? of defendants? information; case was remanded to the trial court for consideration of the protocol described by the appellate court, i.e., the retention of an independent expert to retrieve potentially responsive files to be reviewed by the producing party before production to ensure protection of confidentiality and privilege

Nature of Case: Age discrimination

Electronic Data Involved: ESI, hard drives

Oracle USA v. SAP AG, 264 F.R.D. 541 (N.D. Cal. 2009)

Dec 01 2009

Key Insight: Pursuant to the authority granted by Federal Rules of Civil Procedure 37 and 16, court granted defendants? motion to preclude plaintiffs? presentation of evidence of certain damages where plaintiffs failed to timely inform defendants of their vastly expanded damages claims (despite their ability to do so) and failed to timely supplement their initial disclosures accordingly, and where such expansion would prejudice the defendants in light of the volume of information to be analyzed and the attendant cost; court?s analysis relied in part upon the extensive discovery that had already been undertaken

Nature of Case: Copyright infringement

Electronic Data Involved: Evidence of expanded damages claims

Beyer v. Medico Ins. Group, 2009 WL 3817211 (D.S.D. Nov. 13, 2009)

Dec 01 2009

Key Insight: Where defendant claimed responding to discovery would require searching 200,000 claim files but where court determined defendant could sort claims files using specific codes, court found defendant?s assertions ?disingenuous? and ordered production of the requested files; where defendant claimed search remained unduly burdensome because of need to convert certain files to allow text searching, court reasoned that ?the fact that answering [request for relevant discovery] will be burdensome and expensive is not in itself a reason for the court?s refusing to order discovery which is otherwise appropriate? and ordered the production of all documents describing defendant?s electronic means of searching and all software used during the relevant timeframe (as requested by plaintiff) if defendant persisted in claiming an inability to search electronically as a basis for refusing to answer discovery

Nature of Case: Bad faith denial of insurance claims

Electronic Data Involved: Electronic claim files

Stein v. Clinical Data, Inc., 2009 WL 3857445 (Mass. Super. Ct. October 2009

Dec 01 2009

Key Insight: Court ordered plaintiff?s affirmative claims dismissed, for plaintiff to bear all costs reasonably incurred in connection with defendant?s efforts to obtain discovery of plaintiff?s emails, and that the jury be provided an adverse inference instruction where plaintiff engaged in egregious discovery violations, including incomplete productions, installation and use of software intended to delete relevant emails from his computer, and misrepresentations to the court, among other things

Nature of Case: Breach of employment agreement

Electronic Data Involved: Emails

U.S. v. Dunning, 2009 WL 2815739 (D. Ariz. Nov. 12, 2009)

Dec 01 2009

Key Insight: Court denied defendant?s motion to compel production of ?information that is located in the unallocated or deleted space? of the relevant hard drive where defendant was in possession of ?precisely the same images of the hard drives? that the plaintiff possessed, where plaintiff was not in possession, custody, or control of information not already produced to defendant, and where ?Defendant [was] just as capable as the Government is of extracting the information for trial.?

Nature of Case: Criminal

Electronic Data Involved: Data from unallocated space on hard drive

Archive - December 2009