December 2009 – Page 28 – Electronic Discovery Law

Triple-I Corp. v. Hudson Assocs. Consulting, Inc., 2009 WL 1210882 (D. Kan. May 1, 2009)

Dec 01 2009

Key Insight: Court declined to award sanctions for production of unreadable cds where there was no indication that the issue was discussed prior to the filing of the motion and no evidence as to who was at fault but ordered defendants to make the records available in a readable format and, if electronic copies were not readable, to print the materials for production; for defendants’ failure to produce documents pursuant to court order and for ?evasive and inappropriate? responses to requests for clarification about that failure, court ordered monetary sanctions against defense counsel personally where the court determined such responses were the result of her tactical decisions

Nature of Case: Interference with contractual relationship and other claims

Electronic Data Involved: ESI

In re Application of Michael Wilson & Partners, Ltd., 2009 WL 119374 (D. Colo. Apr. 30, 2009)

Dec 01 2009

Key Insight: Reasoning that electronic storage devices ?perform the same function as did a file cabinet in the pre-electronic era? and that they must therefore be searched ?just as they would have had to do had all the information been printed out and stored in hard copy format? and also reasoning that ?[t]he fact that duplicate documents may have been stored and maintained in more than one place is irrelevant to the duty to search all locations,? court ordered respondents to subpoenas to conduct additional searches of all electronic storage devices in their possession at the time of their response; where the sharing of production costs had been ordered, court required requesting party to post $1 million pre-judgment cost bond in light of the ?circumstances of the case? including respondents? expenditure of more than $2.5 million and fears that the requesting party would dispute their share and attempt to avoid payment

Nature of Case: Litigation between an international law firm and a new firm comprised of its former employees related to the new firm?s alleged interference in business relationships and breach of certain duties

Electronic Data Involved: ESI

Surplus Source Group, LLC v. Mid-Am. Engine, 2009 WL 961207 (E.D. Tex. Apr. 8, 2009)

Dec 01 2009

Key Insight: Where the need for a third search of defendants? electronically stored information resulted from plaintiffs? delay in providing search terms, court ordered defendants to undertake third search, using terms provided by plaintiffs, but ordered plaintiffs to bear the cost of the third search, up to the amount equal to the second search, reasoning that such an order would essentially result in plaintiffs bearing the cost of the second search which was insufficient because of their delay

Nature of Case: Claims arising from defendants? alleged failure to split profits from sales of industrial equipment

Electronic Data Involved: ESI

Kotler v. Woods, 2009 WL 1011701 (E.D.N.Y. Apr. 15, 2009)

Dec 01 2009

Key Insight: Where petitioner challenged his conviction on grounds that the state destroyed material evidence in the form of cassette tapes containing the dictation of a detective?s report and therefore violated his due process rights, court concluded petitioner failed to demonstrate a Brady violation where petitioner failed to show that the evidence would have been favorable to him and would have altered the outcome of his trial and where the trial court gave an adverse inference instruction related to the loss of the tapes that also made a change in the outcome unlikely

Nature of Case: Petition for writ of habeus corpus

Electronic Data Involved: Cassette tapes

Plew v. Ltd. Brands, Inc., 2009WL 1119414 (S.D.N.Y. Apr. 23, 2009)

Dec 01 2009

Key Insight: Denying plaintiff?s motion to compel, court rejected plaintiff?s argument that emails sent to and from a non-party could not be protected as work product where email exchanges occurred at the behest of counsel, because of the relevant litigation, and where there was no indication that the communications were likely to be revealed to plaintiff or any other adversary of the defendant

Nature of Case: Patent infringement

Electronic Data Involved: Emails

Hape v. State, 903 N.E. 2d 977 (Ind. Ct. App. Mar. 31, 2009)

Dec 01 2009

Key Insight: Where a jury discovered and considered text messages not authenticated separately from a properly admitted cell phone, court found that text messages must be separately authenticated before admission into evidence but declined to find grounds for reversal of defendant?s conviction where the error was harmless in the context of the other evidence against him

Nature of Case: Felony possession of methamphetamines

Electronic Data Involved: Text messages

U.S. v. Boyce, 2009 WL 1034775 (Apr. 17, 2009)

Dec 01 2009

Key Insight: Court ordered evidentiary hearing where defendant argued the case against him should be dismissed upon the police department?s inability to produce in-car videotape allegedly containing exculpatory evidence because of ?equipment problems? and where defendant asserted that factual issues needed to be resolved surrounding the department?s efforts to secure the footage and whether any procedure for preservation existed

Nature of Case: Possession with intent to distribute

Electronic Data Involved: Video tape

Asarco, Inc. v. U.S. Envtl. Prot. Agency, 2009 WL 1138830 (D.D.C. Apr. 28, 2009)

Dec 01 2009

Key Insight: Where plaintiff argued it made a sufficient showing of bad faith to justify discovery regarding the adequacy of defendant?s search and the exemptions claimed but where plaintiff presented no genuine issue of material fact to which discovery would be devoted and where the remedy for a deficient search is to remand to the agency for a more adequate search, court denied plaintiffs? motion to take discovery; where defendant used only one search term — ?recontamination? ? court ordered ?one last search? using the terms: ?recontaminate,? ?recontaminat,? ?recontamination,? and ?contaminate again?

Nature of Case: FOIA

Electronic Data Involved: ESI

Henderson v. U.S. Bank, N.A., 2009 WL 1152019 (E.D. Wis. Apr. 29, 2009)

Dec 01 2009

Key Insight: Stating that Rule 34 does not give a party the right to conduct their own search of an opposing party?s electronic devices and holding that counterclaim plaintiff must request specific categories of information and allow counterclaim-defendants to conduct their own search for responsive data, court denied counterclaim-defendants? motion to compel production of all computers, hard drives, and other devices containing electronically stored information

Nature of Case: Enforceability of confdientiality and non-compete agreements, misappropriation of confidential inforamtion

Electronic Data Involved: Computers, hard drives, electronic storage devices

In re Motor Fuel Temp. Sales Practices Litig., 2009 WL 959493 (D. Kan. Apr. 3, 2009)

Dec 01 2009

Key Insight: Court overruled defendants? objections that searching for pre-2001 paper documents would be overly burdensome and ordered production of boxes potentially containing relevant information, as maintained in the course of business, for inspection and identification of responsive materials to be copied, with no waiver of privilege as to documents determined to be privileged; acknowledging defendant?s burden in searching pre-2001 email where data was not easily accessible because of disparate email systems and back up procedures, court allowed plaintiffs, after reviewing hard copy, to specifically identify email or other ESI for production, if found, but did not order a search of all email; where Shell defendant proved undue burden in physically searching individual stations for responsive data, court limited search to ten locations but declined to find undue burden regarding the search of databases and ordered defendants to search the individual databases of 246 Shell stations for responsive information

Nature of Case: Claims arising from accusations that defendants sold fuel at a specified price without adjusting for temperature expansion

Electronic Data Involved: Hard copy, archived email, databases, ESI

Archive - December 2009