2009 – Page 8 – Electronic Discovery Law

Brown v. Coleman, 2009 WL 2877602 (S.D.N.Y. Sept. 8, 2009)

Dec 01 2009

Key Insight: Where expert witness destroyed relevant surgical logs and resisted production of alternative evidence upon the objection that a review of all patient files would be unduly burdensome, court denied motion to compel production of the logs but ordered that as a sanction for spoliation, the expert would not be allowed to testify as to the number of fat grafting procedures he had performed, and would have to be qualified as an expert based on other information

Nature of Case: Medical malpractice

Electronic Data Involved: Surgical records

Nutramax Labs. Inc. v. Theodosakis, 2009 WL 2778388 (D. Md. June 8, 2009)

Dec 01 2009

Key Insight: Court denied defendants? motion for summary judgment and permitted additional discovery by plaintiffs as sanction for defendants? spoliation of its website where defendant removed relevant language from the site after learning of plaintiffs? lawsuit; addressing defendants argument that because plaintiff was able to preserve a copy of the site before the language was removed, there was no prejudice, the court indicated that defendants? ?questionable conduct? suggested that ?there may be other evidence relevant to this summary judgment that has yet to surface? and denied defendants? motion and allowed additional discovery ?to level the evidentiary playing field and to sanction defendants? improper conduct?

Nature of Case: Patent infringement

Electronic Data Involved: Website

In re Interest of B.H., 2009 WL 2195930 (N.J. Super. Ct. App. Div. July 24, 2009)

Dec 01 2009

Key Insight: Court found edited copy of surveillance tape was properly authenticated and admitted where, pursuant to the N.J. Best Evidence Rule, duplicates are admissible to the same extent as the original unless a question is raised as to the authenticity of the original, which defendant did not do, and where the testimony of the patrolman who viewed the original surveillance tape established that the copy was an accurate duplication of the pertinent parts of the original tape, and where there was no showing of unfairness in the production of the edited tape rather than the original

Nature of Case: Criminal / Robbery

Electronic Data Involved: Copy of surveillance tape

Statera v. Henrickson, 2009 WL 2169235 (D. Colo. July 17, 2009)

Dec 01 2009

Key Insight: Court granted plaintiff?s ex parte motion for a temporary restraining order enjoining defendants from ?deleting or destroying, erasing or otherwise making unavailable for further proceedings? any of plaintiff?s relevant business information obtained by defendants while employed by plaintiff and enjoining the deletion or alteration of email messages and other content in relevant email accounts, among other things

Nature of Case: Claims arising from former employees’ formation of competing business and suspected use of plaintiff’s confidential information

Electronic Data Involved: ESI, emails

Southeastern Mech. Servs., Inc. v. Brody, 2008 WL 4613046 (M.D. Fla. July 24, 2009)

Dec 01 2009

Key Insight: Court granted motion for preliminary injunction, including injunction against destruction of evidence related to plaintiff’s claims, including computers

Nature of Case: Misappropriation of trade secrets, tortious interference and related claims

Electronic Data Involved: ESI

Brown v. ICF Int., 2009 WL 7127925 (M.D. La. Apr. 24, 2009)

Dec 01 2009

Key Insight: Where plaintiff was ordered to produce a relevant recording and instead submitted an affidavit indicating that after a ?good faith search? she determined she was not in possession of the recording and had been mistaken in her representations to the contrary, the court granted defendant?s motion and ordered evidentiary sanctions for violating the court?s order to produce the recording after noting plaintiff?s failure to assert the possibility that she was not in possession of the recording prior to the entry of such an order; where plaintiff destroyed her handwritten notes after transcribing portions thereof, the court granted defendant?s request for an adverse inference

Nature of Case: Employment discrimination and retaliation

Electronic Data Involved: Audio recording, handwritten notes

Edelen v. Campbell Soup Co., 2009 WL 4798117 (N.D. Ga. Dec. 8, 2009)

Dec 01 2009

Key Insight: Where plaintiff neither objected to nor complied with the magistrate judge?s orders to narrow his discovery request upon the determination that plaintiff?s requests for the entire contents of his laptop and that of numerous other ?key players? was overbroad, the district court found nothing ?clearly erroneous or contrary to law? in the magistrate judge?s subsequent orders that plaintiff?s counsel be barred from taking additional depositions until the discovery requests were narrowed and for plaintiff?s counsel to pay defendants? attorney?s fees incurred for pursuing the narrowing of those requests

Nature of Case: Employment discrimination

Electronic Data Involved: ESI

Whitaker Chalk Swindle & Sawyer, LLP v. Dart Oil & Gas Co., 2009 WL 464989 (N.D. Tex. Feb. 23, 2009)

Dec 01 2009

Key Insight: Where defendant sought protection against disclosure of documents related to the billing dispute with its former attorneys because such production could waive privileges in another, pending case, court ordered production pursuant to prescribed provisions, including a provision that no waiver would result by the compelled disclosures pursuant to Fed. R. Evid. 502

Nature of Case: Billing dispute between counsel and former client

Electronic Data Involved: Information related to billing dispute

United States v. Hatfield, 2009 WL 3806300 (E.D.N.Y. Nov. 13, 2009)

Dec 01 2009

Key Insight: Addressing a number of attorney-client privilege and work product issues, the court considered whether documents stored on defendant?s company?s computer remained privileged and, noting the case-by-case nature of the assessment, considered five factors, including whether the company maintained a policy banning personal use, whether the company monitored employees? computer use or email, and how the company interpreted its own policy, and determined that defendant had not waived privilege as to documents stored on his own hard drive or that of a person with whom he maintained a joint defense agreement

Nature of Case: Criminal charges arising from alleged fraudulent schemes by CEO to defraud shareholders

Electronic Data Involved: Privileged emails stored on company computer

Kellogg Brown & Root Int., Inc. v. Altanmia Commercial Mktg. Co., 2009 WL 1457632 (S.D. Tex. May 26, 2009)

Dec 01 2009

Key Insight: Where defendant objected to plaintiff?s bill of costs including costs for data extraction and storage by a third party vendor, court stated that the ?steps that KBR had the third-party vendor perform do not appear to be electronic equivalents of exemplification and copying? , held that the costs were not within the ??exemplification and copying? category of ? 1920? and thus upheld defendant?s objection to those costs

Nature of Case: Declaratory judgment related to a series of contracts for fuled transport overseas

Electronic Data Involved: Extraction and storage costs of ESI

Archive - 2009