December 2009 – Page 27 – Electronic Discovery Law

Argus & Assoc. v. Prof?l Benefits Servs., 2009 WL 1297374 (E.D. Mich. May 8, 2009)

Dec 01 2009

Key Insight: Where plaintiff claimed its inability to timely respond to defendant?s discovery requests was caused by defendant?s failure to provide access to Medi-web website, court rejected claims that defendant had intentionally misled plaintiff but reasoned that defendant?s behavior ?was not exemplary? and that the parties should have addressed the website when developing their discovery plan; court?s order upheld prior evidentiary sanction for late productions of evidence related to claims of breach of duty, but excepted evidence not known to plaintiffs until after accessing Medi-web

Nature of Case: Breach of statutory and contractual duties

Electronic Data Involved: Website

Loius Vuitton Malletier, S.A., v. Akanoc Solutions, Inc., 2009 WL 1312898 (N.D. Cal. May 12, 2009)

Dec 01 2009

Key Insight: Where plaintiff?s initial investigation into publicly posted Internet content evidencing offers for counterfeit products revealed that several previously identified addresses belonged to the same individual and where plaintiff identified additional potentially infringing sites, court granted plaintiff?s motion to modify the court ordered inspection protocol to allow investigation beyond the 67 websites previously identified; court rejected defendants? argument that modification should be denied as burdensome where plaintiff was to bear the cost of the searching and rejected defendants privacy concerns in light of expert?s articulated methodology for pinpointing only potentially relevant material

Nature of Case: Trademark and copyright infringement

Electronic Data Involved: Website Content

Capitol Records, Inc. v. Alaujan, 2009 WL 1292977 (D. Mass. May 6, 2009)

Dec 01 2009

Key Insight: Where defendant admitted use of a particular computer to share copy written files but was unable to remember relevant details of the file sharing and put the question of the significance and scope of his infringement at issue, court granted plaintiffs? motion to copy and inspect defendant?s computer but ordered very strict protective order in light of defendant?s significant privacy concerns

Nature of Case: Copyright infringement

Electronic Data Involved: Electronic records related to file-sharing software and metadata associated with music files, including deleted files

Realnetworks, Inc. v. DVD Copy Control Assoc., Inc., 2009 WL 1258970 (N.D. Cal. May 5, 2009)

Dec 01 2009

Key Insight: Where, despite plaintiffs? failure to specify each technology individually, plaintiffs? preservation order was deemed sufficient because the instructions to preserve utilized terminology customarily used within the company to refer a category of technologies, including those at issue, court nonetheless ordered parties to negotiate stipulated Preservation Order going forward; court ordered monetary sanctions for failure to preserve prior employee?s notebook, but declined to order sanctions for plaintiff?s alleged instructions to employees to delete emails absent evidence that employees willfully deleted emails after the preservation order was issued and where one employee at issue testified that emails subject to preservation were not among those deleted and where a second employee at issue deleted emails prior to duty to preserve and subsequently located back up drive with substantial number of non-email documents

Nature of Case: Declaratory judgment

Electronic Data Involved: Email, ESI

Stirling Bridge, LLC v. Porter, 2009 WL 125549 (Ariz. Ct. App. May 7, 2009)

Dec 01 2009

Key Insight: No abuse of discretion in granting defendant?s motion for summary judgment on the issue of destruction of evidence where defendant offered uncontroverted evidence that his partner destroyed computers, without defendant?s involvement, because they were ?obsolete? and where plaintiffs failed to ?raise a disputed issue of material fact regarding [defendant?s] responsibility for [his partner?s] destruction of the computer and other electronic evidence?

Nature of Case: Legal malpractice, breach of fiduciary duty, breach of contract, and securities fraud

Electronic Data Involved: Computers (hard drives)

Dirickson v. State, 2009 WL 195744 (Ark. App. Jan. 28, 2009)

Dec 01 2009

Key Insight: Trial court?s ruling allowing admission of transcripts of online chats into evidence was affirmed where such evidence was considered ??original? in the context of computers? under the rules of evidence and thus satisfied the Best Evidence Rule; court reasoned that even if the transcripts had not satisfied Best Evidence Rule, transcripts were admissible as copies because the originals had been destroyed, but not in bad faith, and the transcripts (?duplicates?) were authenticated by the officer?s testimony regarding how the transcripts were created and the reliability of their content

Nature of Case: Internet stalking

Electronic Data Involved: Transcripts of online chat

Dilley v. Metro. Life Ins., Co., 256 F.R.D. 643 (N.D. Cal. 2009)

Dec 01 2009

Key Insight: Upon finding that because of the ?relative inaccessibility of the information sought?responding to the request would be overly burdensome? where defendant was unable to query its database for the information requested and upon finding that the information sought would not satisfy plaintiff?s purpose without additional information, court found that defendant had established that ?the significance of the discovery to the issues in the present case is substantially outweighed by the burden? and granted defendant?s motion for a protective order

Nature of Case: Wrongful denial of claim for disability benefits

Electronic Data Involved: Database contents

Eastview Healthcare, LLC v. Synertx, Inc., 674 S.E. 2d 641 (Ga. Ct. App. 2009)

Dec 01 2009

Key Insight: Trial court did not abuse discretion in granting plaintiff?s motion to strike defendants? affidavit and attached emails where emails were not properly authenticated; appellate court found defendants? reliance on Willis v. Hill, 116 Ga. App. 848 (1967) to appeal the trial court?s ruling was misplaced where Willis held that ?”[u]pon production of copies pursuant to a notice to produce, the producing party admits the correctness of the copies and further proof is unnecessary in order for the moving party[, i.e., the requesting party,] to introduce them into evidence? but where in the present case the emails sought to be admitted were produced by defendants, i.e. the party seeking their admission, and thus Willis was inapplicable

Nature of Case: Breach of contract, collect on open account

Electronic Data Involved: Emails

Lucas v. Old Navy, LLC, 2009 WL 1172710 (M.D. La. Apr. 28, 2009)

Dec 01 2009

Key Insight: Where plaintiff argued she was entitled to a presumption that defendant had constructive notice of the hanger on the floor that allegedly caused her injuries because defendant failed to preserve the surveillance tape which would have proven such notice, but where plaintiff failed to request preservation of the relevant tape and failed to notify defendant of her intent to sue resulting in the loss of the tape from the system after 60 days, and where plaintiff offered no evidence of defendant?s bad faith, court declined to rely on such a presumption and granted defendant?s motion for summary judgment

Nature of Case: Slip and fall

Electronic Data Involved: Surveillance videotape

Technical Sales Assocs., Inc. v. Ohio Star Forge Co., 2009 WL 1212809 (E.D. Mich. May 1, 2009)

Dec 01 2009

Key Insight: Where forensic examiner revealed evidence of defendants? data deletion to plaintiffs while bound by stipulated order requiring results of the examination to be reported to defendants first, but where the court found the stipulated order was focused on the discovery of actual data rather than the lack of data and that the examiner was therefore not in violation of the order, court reserved ruling on examiner?s motion for attorney?s fees stating that while the examiner?s actions did not rise to the level of contempt, they were not free from taint and that such actions ?[gave] the Court pause about granting [the examiner?s] motion

Nature of Case: Dispute over sales commissions

Electronic Data Involved: Email, ESI

Archive - December 2009