December 2009 – Page 15 – Electronic Discovery Law

Major Tours, Inc. v. Colorel, 2009 WL 3446761 (D.N.J. Oct. 20, 2009)

Dec 01 2009

Key Insight: Court granted protective order precluding obligation to search archived emails or emails stored on backup tapes where such emails were ?not reasonably accessible? in light of the estimated $1.5 million retrieval costs and because backup tapes are generally considered inaccessible, and where plaintiffs failed to establish good cause for such production; where defendant offered a ?scaled back alternative,? court ordered parties to split the cost of retrieving emails from a particular subset of backup tapes and provided plaintiffs the opportunity to compel searches of an additional subset of tapes – at their expense – including the cost of review

Nature of Case: Allegations of discriminatory safety inspections of African American owned buses en route to Atlantic City

Electronic Data Involved: Backup tapes, email

Rhoades v. Young Women?s Christian Assoc. of Greater Pittsburgh, 2009 WL 3319820 (W.D. Pa. Oct. 14, 2009)

Dec 01 2009

Key Insight: Where defendant inadvertently produced 4 privileged documents (among over 1600 total) as the result of an administrative error following a careful review of the documents for production and where defendants sought the return of those document only five days later, court found privilege had not been waived; court found request for ?versions of all emails sent by or to Plaintiff? and several other persons unduly burdensome where the request covered more than seven years of email and did not specify the topics of the information sought

Nature of Case: Violations of Equal Pay Act and Fair Labor Standards Act

Electronic Data Involved: ESI, Privileged ESI

Commonwealth v. Ruddock, 2009 WL 3400927 (Mass. Sup. Ct. Oct. 2009)

Dec 01 2009

Key Insight: Recognizing that the defendant would be ?severely handicapped? absent expert consultation and finding that requiring defendant?s expert to examine the evidence while in the commonwealth?s custody would burden defendant?s rights to effective assistance of counsel and create the risk that his work product would be accessible to the government, court ordered mirror image of defendant?s hard drive to be produced, but entered a strict protective order limiting its use and dissemination

Nature of Case: Possession of child pornography

Electronic Data Involved: Hard drive

Consol. Edison CO. of NY, Inc. & Subsidiaries v. U.S., 2009 WL 3418533 (Fed. Cl. Oct. 21, 2009)

Dec 01 2009

Key Insight: In very long and complicated tax litigation, court found no spoliation absent a duty to preserve where, at the time the data was lost due to migration to a new email system, plaintiffs were involved in routine audit and administrative procedures likely to resolve the relevant dispute and thus had no reason to believe litigation would necessarily ensue (?Indeed, not every dispute with the IRS leads to litigation or ?anticipates? litigation); where counsel provided contradictory statements as to whether litigation was anticipated such that a duty to preserve would have arisen, court determined counsel was essentially unreliable and thus relied on ?other testimony or exhibits? and relied on counsel?s testimony only ?sparingly, when it was uncontested?

Nature of Case: Tax litigation

Electronic Data Involved: Emails

Whitlow v. Martin, 2009 WL 3381013 (C.D. Ill. Oct. 15, 2009)

Dec 01 2009

Key Insight: Where third-party presented evidence that responding to subpoena would require searching hundreds of locations, would require the restoration of back up tapes, and would take ?over two years to accomplish and cost hundreds of thousands of dollars,? court modified subpoena to narrow scope of the request, but ordered production of relevant documents, ?even if they [were] not reasonably accessible?

Nature of Case: Allegations of wrongful termination in furtherance of political scheme

Electronic Data Involved: ESI

Mechling v. City of Monroe, 152 Wash. App. 830 (Wash. Ct. App. 2009)

Dec 01 2009

Key Insight: Court of appeals vacated (in part) judgment of trial court and ruled former statute ?does not exempt disclosure of personal email addresses used by elected officials to discuss city business? and that plaintiff was entitled to the requested email messages without the personal email addresses redacted; court also held that there was no express obligation to produce email records in electronic format, but that statutory duty to ?provide the fullest assistance? obligated trial court to consider reasonableness and feasibility of electronic production on remand; redacted emails need not be scanned and produced electronically

Nature of Case: Complaint pursuant to Public Disclosure Act

Electronic Data Involved: Email addresses, emails

Tango Transp., LLC v. Transp. Int. Pool, Inc., 2009 WL 3254882 (W.D. La. Oct. 8, 2009)

Dec 01 2009

Key Insight: Where defendant established plaintiff?s breach of its duty to preserve emails by failing to timely issue litigation hold notices to all ?key players? but failed to establish defendants? bad faith or the relevance of the lost messages, court declined to impose adverse inference sanctions but ordered monetary sanctions, including defendant?s attorneys fees associated with the motion

Nature of Case: Contract dispute

Electronic Data Involved: Emails, other ESI

People v. Roberts, 2009 WL 3380019 (N.Y. App. Div. Oct. 22, 2009)

Dec 01 2009

Key Insight: Where, based on chain of custody testimony, the trial court admitted a videotape discovered by defendant?s roommate and given to the police, but where there was no testimony concerning the making of the videotape or where it was kept or who had access to it during the nearly three year period from the time of its making to its discovery, and where the appellate court acknowledged that ?because films are so easily altered, there is a very real danger that deceptive tapes, inadequately authenticated, could contaminate the trial process,? appellate court found admission of the tape was in error and that the error was not harmless and ordered a new trial

Nature of Case: Sex abuse

Electronic Data Involved: Videotape

Estrada v. Dehli Cmty. Ctr., 2009 WL 3359194 (Cal. App. Ct. Oct. 20, 2009)

Dec 01 2009

Key Insight: Court imposed terminating sanctions against plaintiff and monetary sanctions upon counsel for egregious discovery abuses; client?s abuses included refusal to produce relevant information despite agreement and/or a court order to do so and willful installation of a new operating system on a computer subject to preservation and production, among other things; counsel?s abuses included delay in responding to discovery, misrepresentations to the court and opposing counsel, and refusal to produce relevant information despite a court order

Nature of Case: Wrongful termination/ sexual harassment

Electronic Data Involved: ESI

Transcap Assoc., Inc. v. Euler Hermes Am. Credit Indemnity Co., 2009 WL 3260014 (N.D. Ill Oct. 9, 2009)

Dec 01 2009

Key Insight: Where defendant ?produced? archived marketing materials by directing plaintiff to website commonly known as the Way Back Machine (which itself warned of missing links and image in webpages) and did not establish or allege that it maintained material on the Way Back Machine in the ordinary course of business, and where the court determined defendant had not adequately investigated the existence of responsive documents in paper form, court granted motion to compel and ordered defendant to conduct ?a thorough search? for responsive documents and to produce them in paper or electronic format within 14 days; court ordered plaintiff to pay attorneys fees and costs and imposed monetary sanctions against plaintiff for the numerous discovery violations addressed in the opinion

Nature of Case: Insurance coverage action

Electronic Data Involved: Way Back Machine

Archive - December 2009