December 2010 – Page 18 – Electronic Discovery Law

Univ. Sports Publ?ns Co. v. Playmakers Media Co., 2010 WL 2802322 (S.D.N.Y. July 14, 2010)

Dec 01 2010

Key Insight: Where the issue before the court was whether defendant had intentionally accessed plaintiff?s database without authorization, court relied on an adverse inference arising from defendant?s intentional destruction of a laptop which would have provided key evidence and held that a genuine issue of material fact existed such that summary judgment was not appropriate

Nature of Case: Alleged violations of Computer Fraud and Abuse Act

Electronic Data Involved: Laptop

Linde v. Arab Bank, PLC, 269 F.R.D. 186 (E.D.N.Y. 2010)

Dec 01 2010

Key Insight: For ?defendant?s recalcitrance in meeting its discovery obligations?, namely refusing to produce certain discovery on the basis of foreign secrecy laws (a justification previously rejected by the court), the court imposed severe sanctions, including adverse inference instructions and an order precluding the presentation of certain evidence

Nature of Case: Knowingly and purposefully aiding and abetting terrorists and terrorist organizations

Electronic Data Involved: Foreign banking information

Schreiber v. Schreiber, 2010 WL 2735672 (N.Y. Sup. Ct. June 25, 2010)

Dec 01 2010

Key Insight: In divorce proceedings, court denied wife?s motion for access to husband?s office hard drive where wife was not entitled to ?unrestricted turnover? of the drive and failed to propose a discover/issue resolution protocol to allow for the protection of privileged and private material but allowed for possible renewal of the motion, which must contain a proper discovery protocol, and provided specific instruction for the proper content of the same

Nature of Case: Matrimonial action/divorce

Electronic Data Involved: Husband’s office hard drive

Shanahan v. Superior Court, 2010 WL 2840254 (Cal. Ct. App. July 21, 2010)

Dec 01 2010

Key Insight: Court ruled against waiver as to privileged documents sent from and stored on deceased employee?s work computer where the employee had a reasonable expectation of privacy under the ?unusual circumstances? presented, including that the employee believed he was permitted to communicate with his attorney via his computer because the attorney was paid for by the company for the purpose of negotiating employee?s employment agreement and because of the failure of the employer?s use policy to expressly negate the expectation of privacy by failing to specifically reference waiver of attorney-client privilege, among other reasons; court also ruled that dissemination of a draft memo to the employee?s secretary did not waive privilege where the secretary was assigned to the employee, frequently edited and printed documents for the employee, and understood that such documents were to be kept confidential

Nature of Case: As executor, widow sued husband’s employer for breach of compensation agreement

Electronic Data Involved: Privileged emails, ESI

Booker v. Mass. Dept. of Public Health, 612 F.3d 34 (1st Cir. 2010)

Dec 01 2010

Key Insight: Trial court did not err in failing to issue an adverse inference instruction where plaintiff failed to establish the evidentiary foundation for such an instruction, namely that the party accused of spoliation was 1) aware of the pending claim, and 2) aware of the document?s relevance to that claim

Nature of Case: Retaliation, torotuous interference with contractual employment relations

Electronic Data Involved: Emails

Board of Trs. Sheet Metal Workers Nat?l Pension Fund v. Palladium Equity Partners, LLC, 722 F. Supp. 2d 845 (E.D. Mich. 2010)

Dec 01 2010

Key Insight: Considering the large volume of materials produced, defendants? efforts to review materials prior to their production (including using 16 review associates supervised by two senior associates), and the complicated nature of certain privilege issues (including the number of law firms implicated in the relevant correspondence), court found no waiver of privilege resulting from the inadvertent production of 184 documents and denied plaintiffs? motion for an order invalidating defendant?s claims of privilege

Nature of Case: Claims arising under the Employment Retirement Income Security Act of 1974 (ERISA)

Electronic Data Involved: Privileged ESI

Moore v. Napolitano, 723 F. Supp. 2d 167 (D.D.C. 2010)

Dec 01 2010

Key Insight: District court upheld sanction precluding defendant from presenting evidence of non-discriminatory reasons for non-promotion upon a prima facie showing of disparate treatment where defendant failed to conduct a reasonable search for responsive paper documents, despite a court order to do so, including providing ?ambiguous and deficient? search instructions to employees; failing to follow up when employees failed to uncover responsive information; and failing to credibly explain defendant?s search efforts, and where the Magistrate Judge properly concluded the sanction was proportional to the offense(s)

Nature of Case: Putative class action for discriminatory non-promotion

Electronic Data Involved: Hard copy

Amerisource Corp. v. RX USA Int?l, Inc., 2010 WL 2730748 (E.D.N.Y. July 6, 2010)

Dec 01 2010

Key Insight: Where a non-party principal of defendant fabricated emails, used those emails to support defendant?s claim, and testified to their authenticity during the course of litigation, the court sanctioned the non-party and defendant and found them jointly and severally liable for payment of $100,000 – half to be paid to plaintiff and half to be paid to the clerk of the court; to sanction non-party, court reasoned that as ?the majority shareholder, chief executive, and only person affiliated with [defendant] to have a substantive role in this litigation?, ?[the principal] is RxUSA? and relied upon its inherent authority to sanction him for litigation misconduct

Nature of Case: Contract dispute

Electronic Data Involved: Fabricated emails

Read v. Teton Springs Golf & Casting Club, LLC, 2010 WL 2697596 (D. Idaho July 6, 2010)

Dec 01 2010

Key Insight: Where defendant attached to a motion an email not previously produced and where plaintiff thereafter sought an explanation for the source of the email, access to defendant?s hard drives, and sanctions, the court found defendant had responded to discovery in good faith but ordered defendant to identify the source of the email at issue and all other hard drives containing responsive documents in its possession; where a custodian represented his hard drive had been replaced in 2006, but produced no email prior to 2007, court (without suggesting misconduct) ordered production of his hard drive to be mirrored

Nature of Case: Claims arising from the manner in which Defendants marketed and sold their properties

Electronic Data Involved: Email, hard drives

Chapman v. Gen. Board of Pension & Health Benefits of the United Methodist Church, 2010 WL 2679961 (N.D. Ill. July 6, 2010)

Dec 01 2010

Key Insight: Where defendant failed to specify a form of production in its initial discovery requests and where defendant produced documents in hard copy, court found that no reproduction of electronic documents was required and rejected defendant?s arguments that plaintiff had failed to uphold her discovery obligations

Nature of Case: Violations of American’s with Disabilities Act

Electronic Data Involved: Electronic versions of previously produced hard copy

Archive - December 2010