December 2010 – Page 11 – Electronic Discovery Law

Streit v. Elec. Mobility Controls, LLC, 2010 WL 4687797 (S.D. Ind. Nov. 9, 2010)

Dec 01 2010

Key Insight: Where defendant?s multiple attempts at starting plaintiff?s car following the underlying accident resulted in multiple ?blocks? of data being overwritten, the court denied sanctions absent evidence that the loss was intentional (where the imposition of sanctions required a showing of bad faith) and because the relevant ?event? data was also recorded in alternative source that was fully preserved and plaintiff offered no evidence that the relevant data was recorded only to the lost data blocks and not the available alternative source

Nature of Case: Personal injury/product liability

Electronic Data Involved: Black box data from automobile

DeMeo v. Kean, 754 F. Supp. 2d 435 (N.D.N.Y. 2010)

Dec 01 2010

Key Insight: Finding sufficient circumstantial evidence to support plaintiff?s claim of willful or intentional spoliation and sufficient direct evidence that defendants? handling of the relevant surveillance footage was ?at least negligent,? the court declined to order terminating sanctions where plaintiff was ?not at a complete loss? in light of alternative evidence to support his claims, but ordered an adverse inference, the language of which will be addressed at trial

Nature of Case: Violations of state constitutional rights and state tort claims arising from an altercation

Electronic Data Involved: Video surveillance footage

DeMeo v. City of Albany, 901 N.Y.S.2d 392 (N.Y. App. Div. 2010)

Dec 01 2010

Key Insight: Court did not abuse discretion when it denied petitioner?s motion for contempt for respondent?s violation of the court?s preservation order where petitioner failed to establish the prejudice resulting from the loss and failed to establish the violation was knowing and willful where respondent testified he initially preserved but then lost the relevant video tape when, as he ?surmised?, his spouse cleaned his office without his knowledge ?and placed the hard drive back into rotation with the others, thus taping over the pertinent portions?

Nature of Case: Plaintiff alleging assault commenced action seeking to preserve surveillance video

Electronic Data Involved: Surveillance video

Smith v. Home Depot USA, Inc., 2010 WL 4641157 (D. Idaho Nov. 5, 2010)

Dec 01 2010

Key Insight: Court granted plaintiff?s motion to compel ?event description? information contained in defendant?s database to correspond with a previously produced spreadsheet regarding past claims and rejected defendant?s objections of irrelevance and undue burden, particularly in light of testimony which indicated the relative ease of collection and production based on the efforts previously undertaken in creating the related spreadsheet

Nature of Case: Product liability

Electronic Data Involved: ESI contained in database

VFI Assoc., LLC v. Lobo Mach. Corp., 2010 WL 4716215 (W.D. Va. Nov. 15, 2010)

Dec 01 2010

Key Insight: For defendant?s knowing refusal to produce responsive data and bad faith alteration of data in an effort to hide relevant evidence, the court declined to impose terminating sanctions but precluded defendants from offering any “defense, evidence, or argument” as to several disputed issues and indicated it willingness to ?take under advisement? additional sanctions, including monetary sanctions, a finding of contempt of court, and a possible adverse inference instruction [on Nov. 22, 2010, a second opinion was issued, identical to the first except that the footnote regarding the court’s consideration of future sanctions discussed only an adverse inference instruction and did not include mention of a finding of contempt or monetary sanctions, 2010 WL 4868110]

Nature of Case: Allegations that business manager accepted kickbacks from equipment supplier

Electronic Data Involved: ESI

Brinckerhoff v. Town of Paradise, 2010 WL 4806966 (E.D. Cal. Nov. 18, 2010)

Dec 01 2010

Key Insight: Citing plaintiff?s failure to raise the issue of electronic discovery at the discovery conference, her failure to request ESI in discovery, and the lack of hardship in reviewing hard copy produced by defendants, the court generally denied plaintiff?s request to compel production of ESI in native format but, as to an evaluation of plaintiff, the court compelled the production of metadata and reasoned that the revelation of the date created and whether it was modified could be pivotal for the plaintiff

Nature of Case: Employment discrimination

Electronic Data Involved: ESI

United States v. McNealy, 625 F.3d 858 (5th Cir. 2010)

Dec 01 2010

Key Insight: Where the original computer seized from defendant was ?destroyed as the result of a miscommunication between divisions of the federal government? (computer was destroyed by the Asset Forfeiture Division working independently of the attorneys handling the criminal case), the District Court did not err in finding that the computer was not destroyed in bad faith and that such destruction did not violate the defendant?s due process rights

Nature of Case: Possession and receipt of child pornography

Electronic Data Involved: Computer/hard drive seized as evidence

Prins v. Dir. of Revenue, 333 S.W.3d 17 (Mo. Ct. App. 2010)

Dec 01 2010

Key Insight: Where the trial court granted spoliation sanctions despite failing to find that the loss was intentional or in bad faith (where the officer failed to preserve the relevant video footage as the result of failing to mark the right ?checkbox? in the system) and where Missouri law requires ?evidence of intentional destruction? or ?evidence that the spoliator destroyed the evidence ?under circumstances manifesting fraud, deceit, or bad faith?, the appellate court reversed the judgment of the trial court and remanded for a new hearing

Nature of Case: DUI

Electronic Data Involved: Video footage of defendant’s stop and arrest

Kmart Corp. v. Footstar, Inc., 2010 WL 4512337 (N.D. Ill. Nov. 2, 2010)

Dec 01 2010

Key Insight: Court found the producing party did not take reasonable steps to prevent disclosure and that privilege was therefore waived as to inadvertently produced privileged documents where the number of documents requiring review prior to production was low in light of the public nature of most documents produced at the same time as the inadvertently produced documents, where the alleged time constraints for the relevant review were ?self-imposed? by the producing party, and where despite representations that the materials were reviewed by an attorney who was looking for privileged materials, insufficient facts were offered in support of that contention

Nature of Case: Plaintiff sought indemnification for underlying personal injury suit

Electronic Data Involved: ESI

United States v. Wright, 625 F.3d 583 (9th Cir. 2010)

Dec 01 2010

Key Insight: Court reasoned that the Adam Walsh Act?s requirement that defendant have ?ample access? to examine child pornography evidence did not mean ?equal access? and ruled that where defendant?s expert was given access to the evidence under certain conditions (including time and place restrictions) but not provided with a mirror image of the drive to examine at will and where the expert was expressly ?comfortable? with that arrangement and was afforded 14 months to examine the evidence, ?ample access? was provided

Nature of Case: Child Pornography

Electronic Data Involved: Hard drive containing the pornographic images

Archive - December 2010