Archive - 2009

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In re Intel Microprocessor Antitrust Litig., 2009 WL 2030967 (D. Del. July 7, 2009)
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Smith v. Life Investors Ins. Co., 2009 WL 2045197 (W.D. Pa. July 9, 2009)
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Chambers v. U.S. Dept. of Interior, 568 F.3d 998 (2009)
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Synergetics USA, Inc. v. Alcon Labs., Inc., 2009 WL 2016795 (S.D.N.Y. July 9, 2009)
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EEOC v. Aaron Bros., Inc., 620 F.Supp.2d 1102 (C.D. Cal. 2009)
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Telequest Int?l Corp. v. Dedicated Business Sys., Inc., 2009 WL 690996 (D.N.J. Mar. 11, 2009)
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Brodsky v. Humana, Inc., 2009 WL 1956450 (N.D. Ill. July 8, 2009)
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Wolfe v. Glasgow, 2009 WL 1956687 (M.D. Fla. July 7, 2009)
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Rahman v. The Smith & Wollensky Rest. Group, Inc., 2009 WL 773344 (S.D.N.Y. Mar. 18, 2009)
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Dong Ah Tire & Rubber Co., Ltd. V. Glasforms, Inc., 2009 WL 1949124 (N.D. Cal. July 2, 2009)

In re Intel Microprocessor Antitrust Litig., 2009 WL 2030967 (D. Del. July 7, 2009)

Key Insight: Court adopted Special Master?s Report and Recommendation requiring plaintiffs to respond to questions regarding the scope of their efforts with regard to the restoration of backup tapes upon finding that such information was not protected by the attorney-client privilege

Nature of Case: Antitrust litigation

Electronic Data Involved: Backup tapes, ESI

Smith v. Life Investors Ins. Co., 2009 WL 2045197 (W.D. Pa. July 9, 2009)

Key Insight: Where defendant performed electronic search ?without plaintiff?s input? and then refused to produce its search terms claiming attorney work product, court cited Victor Stanley, Inc. v. Creative Pipe, Inc., 250 F.R.D. 251, 262 (D.Md.2008), for the proposition that ?the party performing the search had a duty to demonstrate that its methodology was reasonable? and, noting that ?a thorough explanation of the search terms and procedures used would be a large step in that direction,? granted plaintiff?s motion to compel; court granted Plaintiff?s Motion to Resolve a Disputed Claim of Privilege Pursuant to Fed. R. Civ. P. 26(b)(5)(B) finding the documents at issue were not subject to protection and need not be returned to defendant

Nature of Case: Class action involving “interpretation fo the term ‘actual damages’ in a supplemental cancer insurance policy”

Electronic Data Involved: Search terms

Chambers v. U.S. Dept. of Interior, 568 F.3d 998 (2009)

Key Insight: Court reversed and remanded grant of summary judgment on the issue of the adequacy of the government?s search in response to plaintiff?s FOIA request where a material fact existed as to whether the DOI intentionally destroyed the requested material before undertaking its search which would prevent a finding that the search was adequate

Nature of Case: Freedom of Information Act / FOIA

Electronic Data Involved: Performance appraisal

Synergetics USA, Inc. v. Alcon Labs., Inc., 2009 WL 2016795 (S.D.N.Y. July 9, 2009)

Key Insight: Court granted defendants? motion for the return of privileged documents where the documents were inadvertently produced following a ?multi-layered? review, where defendants promptly requested the return of the documents within three days of learning of their disclosure, and where ?fairness would not be offended by restoring immunity to [the] documents;? some documents subject to defendants? motion were determined not to be privileged and thus were not subject to return

Nature of Case: Violation of antitrust laws by tying sales of light tubes to sales of Accurus cassettes, predatory pricing

Electronic Data Involved: Emails

EEOC v. Aaron Bros., Inc., 620 F.Supp.2d 1102 (C.D. Cal. 2009)

Key Insight: Court granted motion to modify subpoena and rejected defendants arguments it was overly broad and unduly burdensome where the court found the evidence sought to be relevant and material and where defendants failed to present evidence of the actual costs of production, the size of their operations and there capacity to handle those costs, or that such costs would be unduly burdensome

Nature of Case: Employment discrimination

Electronic Data Involved: ESI, harcopy

Telequest Int?l Corp. v. Dedicated Business Sys., Inc., 2009 WL 690996 (D.N.J. Mar. 11, 2009)

Key Insight: Where forensic examination of defendant?s hard drive revealed the deletion of electronic evidence using wiping software and where at the time of the deletion defendant was subject to a duty to preserve, court declined to impose default judgment but ordered an adverse inference and monetary sanctions in an amount to be determined

Nature of Case: Claims of fraud, misappropriation of confidential and proprietary information, breach of fiduciary duties, and breach of contract

Electronic Data Involved: ESI, contents of hard drive

Brodsky v. Humana, Inc., 2009 WL 1956450 (N.D. Ill. July 8, 2009)

Key Insight: Addressing whether certain of plaintiff?s requests were unduly burdensome relative to the likely benefit of production, court granted in part and denied in party plaintiff?s motion to compel upon determining that certain requests were unduly burdensome in light of the estimated time and effort to respond

Nature of Case: Violations of Telephone Consumer Protection Act

Electronic Data Involved: ESI, mirror image drives

Wolfe v. Glasgow, 2009 WL 1956687 (M.D. Fla. July 7, 2009)

Key Insight: Court granted Motion to Quash Subpoena Duces Tecum to Non-party upon finding the subpoena ?overly broad on its face? where the subpoena failed to describe the documents sought with any particularity and would have essentially required the large third-party corporation ?to search its entire database of records to produce every document which refers or relates in any way to the named defendants and to [a former employee]?

Nature of Case: Discrimination in violation of Fair Housing Act

Electronic Data Involved: ESI

Rahman v. The Smith & Wollensky Rest. Group, Inc., 2009 WL 773344 (S.D.N.Y. Mar. 18, 2009)

Key Insight: Court found plaintiff?s objections to defendants? production in pdf format ?without merit? where plaintiff failed to specify the preferred format of production and where absent such specification ?pdf format?is presumptively a ?reasonably useable form?? and similarly dismissed plaintiff?s substantive complaints regarding the production upon its determination that there was sufficient information for plaintiff?s expert to perform an analysis; court also declined to reconsider denial of spoliation sanctions in light of ambiguous deposition testimony regarding a possible delay in the implementation of a litigation hold and noted the absence of evidence that the gap in production was attributable to such delay

Nature of Case: Employment discrimination

Electronic Data Involved: ESI

Dong Ah Tire & Rubber Co., Ltd. V. Glasforms, Inc., 2009 WL 1949124 (N.D. Cal. July 2, 2009)

Key Insight: Stating ?Taishan did not even come close to making reasonable efforts to carry out its preservation of materials??, court ordered adverse inference and monetary sanctions (attorney?s fees and costs) for third-party defendant?s failure to preserve relevant evidence in violation of its litigation related duty to preserve and, in some instances, in violation of its own document retention policies

Nature of Case: Breach of contract (non-conforming goods)

Electronic Data Involved: ESI

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