December 2009 – Page 9 – Electronic Discovery Law

CBT Flint Partners, LLC v. Return Path, Inc., 2009 WL 5159761 (N.D. Ga. Dec. 30, 2009)

Dec 01 2009

Key Insight: Recognizing a ?division of opinion? as to whether e-discovery vendor costs are recoverable, court called the ?highly technical? services provided by the e-discovery vendor the ?21st century equivalent of making copies,? noted that ?taxation of these costs will encourage litigants to exercise restraint in burdening the opposing party with the huge cost of unlimited demand for electronic discovery? and overruled and denied plaintiff?s objection to taxation as costs of the e-discovery consultant?s fees; Summary judgment reversed and costs vacated in CBT Flint Partners, LLC v. Return Path, Inc., Nos. 1010-1201, 2010-1203, 2011 WL 3487023 (Fed. Cir. Aug. 10, 2011)

Nature of Case: Patent Infringement

Electronic Data Involved: ESI

In re Rail Freight Surcharge Antitrust Litig., 2009 WL 3443563 (D.D.C. Oct. 23, 2009)

Dec 01 2009

Key Insight: Where defendants argued against treating in house counsel as ?normal custodians? for purposes of collection and production because the burden of reviewing potentially responsive information for privilege was high and the likely benefit of any material produced minimal, but where the parties had already agreed on a ?filter? which would automatically ?log? any ESI hit by certain privileged terms, court ordered ESI production to go forward but delayed review and production of hard copy until the extent of the burden could be determined and indicated hope that ?we will be able to devise a method of reviewing the hard copies for privilege without the necessity of a log? noting that ?I have all too often found the traditional privilege log useless.?

Nature of Case: Antitrust litigation

Electronic Data Involved: ESI

In re Kessler, 2009 WL 2603104 (E.D.N.Y. Mar. 27, 2009)

Dec 01 2009

Key Insight: In a case arising from the fire of a boat while in the marina the district court rejected the magistrate?s recommendation in favor of spoliation sanctions for the marina?s failure to preserve surveillance video because the court found that the owner of the boat did not meet the burden of establishing the marina?s culpable destruction of relevant tape in violation of a duty to preserve where the footage ?self destructed approximately twenty-seven hours after it was recorded? when it was automatically recorded over in the regular course of the system?s activities; marina was ordered to bear the cost of conducting forensic examination of its hard drive to determine if fire footage could be retrieved

Nature of Case: Claims resulting from a vessel destroyed by fire while in the marina

Electronic Data Involved: Video surveillance

Snoznik v. Jeld-Wen, 259 F.R.D. 217 (W.D.N.C. 2009)

Dec 01 2009

Key Insight: Where testifying expert created and utilized electronic templates which he considered proprietary to create his report, court granted expert?s motion for a protective order and declined to compel production of the templates upon finding that the templates were not relevant to the actual issues at trial, that the defendant failed to show a need for the templates in light of expert?s production of underlying data used to create his report, that the expert properly sought a protective order to address the issues of confidentiality, and that the potential harm to the expert outweighed the potential (non-existent) harm to defendant

Nature of Case: Negligence, breach of implied warranty and express warranty and loss of consortium

Electronic Data Involved: Electronic templates used to create expert report

Whatman v. Davin, 2009 WL 4808807 (D.S.C. Dec. 9, 2009)

Dec 01 2009

Key Insight: Where defendant?s employee admitted to using her personal computer to work from home and plaintiff thereafter sought to compel defendant?s production of that computer, court found that ?plaintiff?s informal request for a forensic copy of [employee?s] personal home computer does not impose upon the defendants the burden of producing property outside its possession and control? and therefore denied plaintiff?s motion to compel

Nature of Case: Misappropriation of trade secrets and related claims

Electronic Data Involved: Employee’s personal computer

United States v. Haymond, 2009 WL 2835398 (D. Okla. Aug. 28, 2009)

Dec 01 2009

Key Insight: Where law requires denial of a request to copy or reproduce child pornography as long as the material is made ?reasonably available? to defendant and where defendant?s expert claimed an inability to locate the alleged illegal images on the forensic copy of the hard drive to which he was provided access, court indicated reticence to order the production of ?file data? to assist in the location of relevant images on the drive, but ordered defendant?s expert to instead coordinate access to the previously provided copy and for the government to assist his efforts by providing ?software keys? in there possession ? if effort failed, court indicated willingness to consider ordering production of the requested ?sector and file? information to assist defendant?s expert?s examination

Nature of Case: Child pornography

Electronic Data Involved: Images on hard drive

Synventive Molding Solutions, Inc. v. Husky Injection Molding Sys., Inc., 262 F.R.D. 365 (D. Va. 2009)

Dec 01 2009

Key Insight: Where plaintiff failed to issue a litigation hold, court ordered plaintiff to issue a litigation hold as to those personnel likely to possess discoverable evidence and to file a sworn declaration describing whether any files had been lost, the methods use to determine the existence of such a loss, the extend of the loss, and the nature of the litigation hold placed in response to the present order; court found plaintiff?s production of documents ?problematic? where it failed to organize the production according to Rule 34 and ordered plaintiff to ?amend? its production to comply; acknowledging that ?the identities of those in control of certain documents is information that may be as relevant as the documents? [substance]?, court ordered search and production of President?s documents despite claims that those documents were produced from other custodians

Nature of Case: Patent infringement

Electronic Data Involved: ESI

U.S. E.E.O.C. v. Olson Staffing Servs., 657 F. Supp. 2d 1029 (W.D. Wis. Sept. 28, 2009)

Dec 01 2009

Key Insight: Where authentication ?is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims?, court rejected argument that only the author could authenticate and found email was properly authenticated by the testimony of the person who ?personally retrieved the email from [the relevant] computer?

Nature of Case: Violations of Americans with Disabilities Act

Electronic Data Involved: Email

Donnelly v. NCO Fin. Sys., Inc., 2009 WL 5551377 (N.D. Ill. Dec. 16, 2009)

Dec 01 2009

Key Insight: Court granted motion to compel defendant to produce a list of all persons it called on cellular telephones within particular area codes, despite defendant?s claim that such production would be unduly burdensome and minimally probative and that it would need to create special programs to extract the information which would take ?several hundred hours,? where court determined plaintiff?s need for the information outweighed the burden in producing it

Nature of Case: Class action

Electronic Data Involved: ESI

Graske v. Auto-Owners Ins. Co., 647 F.Supp.2d 1105 (D. Neb. 2009)

Dec 01 2009

Key Insight: Where, when producing voluminous documents in response to Fed. R. Civ. P. 33 they must be accompanied by indices ?to guide the interrogating party to the responsive documents? and where ?rules applicable to producing documents under Rule 33(d) are generally applicable to Rule 34?, court ordered defendant to provide more detailed responses to plaintiffs requests for discovery upon defendants? production of 7000 pages and indication that ?all 7000 pages of documents were responsive to each request?; court reasoned, ?Defendant’s claims that the documents are sufficiently organized because they are bates-stamped and scanned into a CD-ROM are unavailing. Defendant did not refer to specific bates numbers when it responded to the discovery requests at issue, and the fact that the documents can be electronically searched by key term is not sufficient to discharge defendant’s duty to sufficiently identify the location of the relevant documents.?

Nature of Case: Breach of faith and breach of fiduciary duty

Electronic Data Involved: ESI

Archive - December 2009