December 2009 – Page 26 – Electronic Discovery Law

Covad Commc?ns Co. v. Revonet, Inc., 258 F.R.D. 5 (D.D.C. 2009)

Dec 01 2009

Key Insight: Where parties failed to reach agreement regarding inspection protocol for defendant?s relevant database, court stepped in and ordered plaintiff?s expert to image relevant servers and PCs and to search those systems for relevant documents; having generally declined to order searching of defendant?s exchange servers absent more than conclusory assertions of a deficient production, court found compelling justification for a comparative search of certain exchange servers where, in light of a previous server crash and subsequent restoration of the content, questions arose regarding the identification of all responsive emails

Nature of Case: Misappropriation and conversion of trade secret information

Electronic Data Involved: Database, emails, ESI

Plunk v. Village of Elwood, Ill., 2009 WL 1444436 (N.D. Ill. May 20, 2009)

Dec 01 2009

Key Insight: Where audio tape of council meeting was lost despite duty to preserve and where defendants failed to rebut plaintiffs? allegation that the tape was erased or replaced beyond an unsupported assertion of inadvertence, court precluded defendants from relying on occurrences at the meeting and ordered an adverse inferences to the jury; where evidence indicated computers subject to preservation were defragged repeatedly, and perhaps erased intentionally, and where defendants failed to preserve 6 hard drives despite agreeing do so, court ordered jury to be informed of failure to preserve, that defendants were precluded from arguing that the absence of evidence supported their contentions, and that the jury would be given permission to draw an adverse inference

Nature of Case: Civil rights action

Electronic Data Involved: Audio tape, hard drives

Infor Global Solutions, Inc. v. St. Paul Fire and Marine Ins. Co., 2009 WL 1421576 (N.D. Cal. May 15, 2009)

Dec 01 2009

Key Insight: Where plaintiff claimed electronic documents could not be located due to changes in the computer system upon merging and because of a lack of back up tapes for the relevant time period, court found that plaintiff failed to provide an adequate explanation for its inability to produce, including explaining what happened to the files that previously existed, stated that plaintiff ?needs to show it has conducted a diligent search for responsive documents? and ordered plaintiffs to conduct further searches for responsive documents

Nature of Case: Recovery of legal expenses

Electronic Data Involved: Emails

Innis Arden Golf Club v. Pitney Bowes, Inc., 257 F.R.D. 334 (D. Conn. 2009)

Dec 01 2009

Key Insight: Where consulting firm retained by plaintiff destroyed soil samples and related electronic data absent implementation of a litigation hold and where plaintiff was obligated to preserve such evidence in light of the possibility of litigation and its knowledge of the evidence?s relevance to that litigation, court attributed the consulting firm?s destruction of the samples and data to plaintiff based upon ?the close ties? between them and imposed a sanction precluding the admission of evidence based on the destroyed evidence; court found that defendant?s failure to conduct its own testing upon notice of impending remediation to the relevant property did not constitute a disclaimer of defendant?s interest in plaintiff?s pre-remediation soil samples, especially where remediation destroyed defendant?s ability to verify plaintiff?s testing results or conduct additional tests and where defendant was not aware that the existing data in plaintiff?s possession would be destroyed

Nature of Case: Cost recovery action

Electronic Data Involved: Soil samples and related electronic data

McGarry v. Becher, 2009 WL 1363456 (S.D. Ind. May 13, 2009)

Dec 01 2009

Key Insight: Rejecting defendant?s claims that production of data stored in taser units related to the time and number of firings would be unduly burdensome in light of the high number of times the tasers were fired, including test firings required each day, Court granted in part plaintiff?s motion to compel production of the data upon finding that the device stored data related to no more than 585 firings, among other things, and where defendants made no showing that the printing of those entries would be unduly expensive; court ordered plaintiff to bear any cost of printing or downloading the information in excess of $200

Nature of Case: Potential class action regarding use of tasers in county jail

Electronic Data Involved: Data stored in taser related to date and time fired

In re Debusk, 2009 WL 1256891 (E.D. Tenn. May 1, 2009)

Dec 01 2009

Key Insight: District court affirmed bankruptcy court?s denial of debtor?s discharge for violations of 11 U.S.C. ? 727(a)(3), among other things, where debtor failed to preserve adequate records from which is financial condition or business transactions could be ascertained and where debtor failed to offer sufficient justification for such behavior beyond his own failure to adequately back up his electronic records and the subsequent loss of his records as the result of a computer virus

Nature of Case: Bankruptcy

Electronic Data Involved: Electronic records

Mauna Kea Beach Hotel Corp. v. Affiliated FM Ins. Co., 2009 WL 1227850 (D. Haw. May 1, 2009)

Dec 01 2009

Key Insight: In insurance dispute, where defendant appealed the order of the Magistrate arguing that discovery requests, even as limited by Magistrate?s order, were unreasonable and burdensome in light of need to review thousands of claims without the capability to search electronically, District court ruled that discovery of related claims should be limited to claims from Hawaii and ordered production of such claims from 2003 to present

Nature of Case: Claims of bad faith, breach of contract, and unjust enrichment arising from insurance dispute

Electronic Data Involved: Electronically stored claims information

Triton Constr. Co., Inc. v. E. Shore Elec. Servs., Inc., 2009 WL 1387115 (Del. Ch. May, 18, 2009)

Dec 01 2009

Key Insight: Finding that defendant should have expected litigation upon his resignation to accept employment with a competitor, court found that defendant ?intentionally, or at a minimum recklessly destroyed or failed to preserve evidence? by installing wiping software to target specific files for overwriting, by deleting thousands of files and folders as well as emails, and by failing to produce his home computer or portable thumb drive without adequate explanation; court allowed adverse inference that missing information would have supported plaintiff?s position ?on any issue to which that information was relevant?

Nature of Case: Breach of fiduciary duty by working simultaneously for direct competitor

Electronic Data Involved: Email, ESI

Phillips v. Potter, 2009 WL 1362049 (W.D. Pa. May 14, 2009)

Dec 01 2009

Key Insight: Where defendants failed to timely place a litigation hold and where electronic evidence was subsequently destroyed by an automatic deletion system, court declined to impose sanctions upon plaintiff?s failure to show that the evidence destroyed was relevant to her claims

Nature of Case: Violations of Title VII and breach of contract

Electronic Data Involved: ESI

State v. Denton, 768 N.W.2d 250 (Wis. Ct. App. 2009)

Dec 01 2009

Key Insight: Trial court erred in admitting computer generated animation allegedly depicting the events that lead to trial where State failed to provide notice of its intent to use the animation, where the animation was created by a non-expert witness who lacked personal knowledge of the events, and where the State failed to lay a foundation for the evidence based on the incorrect assumption that the animation was merely demonstrative; appellate court determined animation was more prejudicial than probative where it did not merely illustrate a witness?s testimony but rather was ?a collage of information? from each of the State?s witnesses presented as fact

Nature of Case: Attempted kidnapping, false imprisonment, attempted armed robbery

Electronic Data Involved: Computer generated animation

Archive - December 2009