December 2010 – Page 13 – Electronic Discovery Law

Managed Care Solutions, Inc. v. Essent Healthcare, Inc., 2010 WL 3368654 (S.D. Fla. Aug. 23, 2010)

Dec 01 2010

Key Insight: Where the defendant was negligent in its failure to preserve potentially relevant emails and attachments by failing to timely issue a litigation hold and where those emails and attachments were lost as the result of an automatic deletion pursuant to defendant?s document retention policy, the court denied plaintiff?s motion for spoliation sanctions where the court determined the evidence was not ?crucial? to plaintiff?s case and where there was no direct or circumstantial evidence of bad faith; court noted that the ruling did not foreclose the possibility that plaintiff could introduce evidence of defendant?s failure to retain relevant documents at trial

Nature of Case: Breach of contract

Electronic Data Involved: Emails and attachments

Hare v. Opryland Hospitality, LLC, 2010 WL 3719915 (D. Md. Sept. 17, 2010)

Dec 01 2010

Key Insight: Where plaintiff sought spoliation sanctions for defendant?s alleged destruction of ?full and complete surveillance video? of the relevant incident but failed to establish that defendant had the burden to preserve any video aside from the portion produced or that any other relevant footage existed and was deleted and where plaintiff failed to establish the ?requisite state of mind?, the court denied plaintiff?s motion for sanctions

Nature of Case: Personal Injury

Electronic Data Involved: Video surveillance footage

Lunts v. Rochester City School Dist., 2010 WL 2786519 (W.D.N.Y. Sept. 28, 2010)

Dec 01 2010

Key Insight: Where defendants denied plaintiffs? spoliation allegations and opposed their motion for sanctions by asserting that all responsive emails had been produced, court ordered defendants to comply with a prior order requiring defense counsel to submit a declaration indicating whether any relevant ESI had been withheld and why and to provide a privilege log for any such documents and to provide a privilege log for three emails previously submitted for in camera review; failure to submit the declaration or the privilege log by a date certain would result in a $500 sanction for each violation

Nature of Case: Employment litigation

Electronic Data Involved: Emails

Whited v. Motorists Mutual Ins. Co., 2010 WL 3862717 (E.D. Mich. Sept. 28, 2010)

Dec 01 2010

Key Insight: For plaintiff?s willful and bad faith violations of the court?s orders which resulted in prejudice to the defendants, including unexplained delays in production and intentional deletion of files on computers which the court had ordered no one to use, and where the court had previously warned that failure to comply could result in dismissal, court ordered dismissal of plaintiff?s claims

Nature of Case: Cross claims arising from insurance payments for home health care

Electronic Data Involved: ESI

Barrow v. Miner, 2010 WL 4016815 (Ohio Ct. App. Oct. 15, 2010)

Dec 01 2010

Key Insight: Trial court did not abuse discretion in dismissing plaintiff?s claims as sanction for spoliation where plaintiff failed to preserve evidence and in fact purposefully acted to destroy evidence by utilizing scrubbing software and taking other deliberate measures

Nature of Case: Plaintiffs brought suit to recover losses based on a breach of fiduciary duty, wrongful termination, and indemnification

Electronic Data Involved: Contents of plaintiff’s computer

BBVA Compass Ins. Agency, Inc. v. Olson, 2010 WL 4004516 (D. Colo. Oct. 12, 2010)

Dec 01 2010

Key Insight: Where plaintiff presented evidence that searching for the information requested by defendants could exceed 400 hours and where the request was duplicative and other sources of information existed, the court found that ?the burden on plaintiff ? is heavier than Defendants? alleged need for the files warrants? and granted plaintiff?s request for a Protective Order

Nature of Case: Claims for misappropriation of trade secrets, breach of fiduciary duty, breach of the duty of loyalty and breach of contract, among others

Electronic Data Involved: ESI/customer files

Fleming v. Escort, Inc., 2010 WL 3833995 (D. Idaho Sept. 24, 2010)

Dec 01 2010

Key Insight: Where plaintiff sought the unredacted source code of defendant?s allegedly infringing products, the court credited plaintiff?s expert testimony that because source code ?generally contains notes by the writer of that code ?that explain to others who come later what the [writer] of the code was trying to accomplish at that portion of the code??, all of the source code was necessary to ensure his correct understanding of all portions and ordered plaintiff to produce the source code pursuant to the parties protective order; in so holding, court noted that ?the dilemma? of having to produce source court for unrelated products was of defendant?s ?own making? because of its business practice of bundling the source code for all of its products together

Nature of Case: Patent infringement

Electronic Data Involved: Source code

Interserve, Inc. v. Fusion Garage, Ltd., 2010 WL 3931100 (N.D. Cal. Oct. 6, 2010)

Dec 01 2010

Key Insight: Where the court found that defendant?s source code?s metadata ?(i.e. programmer?s notes or comments and other annotations in the source code) ? may be relevant to [plaintiff?s] claims,? the court ordered defendant to produce the metadata but indicated that it could redact the actual source code from the production and produce the metadata subject to the parties? stipulated protective order

Nature of Case: Misappropriation of business ideas, false advertising, breach of fiduciary duty, fraud

Electronic Data Involved: Metadata for source code ?(i.e. programmer?s notes or comments and other annotations in the source code)”

Cenveo Corp. v. S. Graphic Sys., Inc., 2010 WL 3893709 (D. Minn. Sept. 30, 2010)

Dec 01 2010

Key Insight: For CFO?s intentional destruction of evidence to defeat litigation despite a duty to preserve, the district court judge adopted the magistrate judge?s recommendation and imposed a $100,000 fine and found that more drastic sanctions were not warranted where the resulting prejudice was mitigated by the availability of all the defendants and other witnesses for questioning

Nature of Case: Tortious interference with business relationships, misappropriation of trade secrets, unfair competition

Electronic Data Involved: Emails

Kwon v. Costco Wholesale Corp., 2010 WL 571941 (D. Haw. Feb. 17, 2010)

Dec 01 2010

Key Insight: Court granted in part plaintiff?s motion in limine and imposed an adverse inference resulting from defendant?s failure to preserve surveillance video tape potentially containing footage of the underlying accident upon finding that defendant was aware of its duty to preserve but took no steps to prevent the footage from being automatically recorded over; court denied request for default judgment where such a drastic step was not warranted absent evidence of the ?requisite willfulness, fault, or bad faith?; court declined to impose monetary sanctions

Nature of Case: Personal injury/slip and fall

Electronic Data Involved: Video surveillance tape

Archive - December 2010