December 2010 – Page 25 – Electronic Discovery Law

Lockheed Martin Corp. v. L-3 Commc?ns Integrated Sys., L.P., 2010 WL 1891779 (N.D. Ga. Mar. 31, 2010)

Dec 01 2010

Key Insight: Where, prior to entry of judgment, defendant moved for sanctions of dismissal or a new trial due to plaintiff?s failure to produce highly relevant internal emails during discovery, and where the factors for a new trial were met, court declined to order dismissal but ordered a new trial and thus set aside the $37.3 million verdict in favor of plaintiff

Nature of Case: Misappropriation of trade secrets

Electronic Data Involved: Emails

Phillip M. Adams & Assoc., LLC v. Fujitsu, Ltd., 2010 WL 1064429 (D. Utah Mar. 18, 2010)

Dec 01 2010

Key Insight: Where defendant subpoenaed third parties seeking production of communications between defendant and those third parties from years prior, and where defendant could not produce those communications itself, court found the information relevant and denied third parties? motion to quash but, noting that defendant?s insufficient document retention policies resulted in the need to subpoena the information, court ordered defendant to bear the costs of production

Nature of Case: Patent infringement

Electronic Data Involved: Emails, ESI

Gordanier v. Montezuma Water Co., 2010 WL 935665 (D. Colo. Mar. 11, 2010)

Dec 01 2010

Key Insight: Court denied motion to compel production of ESI from the computer of plaintiff?s supervisor where plaintiff was aware of the existence of the computer and its email capabilities prior to filing suit but nonetheless agreed in the scheduling order that no electronic discovery would be required and thus could not show ?good cause? to amend the order

Nature of Case: Employment Discrimination

Electronic Data Involved: ESI from hard drive of plaintiff’s supervisor

In re Venom. Inc., 2010 WL 892203 (Bankr. E.D. Pa. Mar. 9, 2010)

Dec 01 2010

Key Insight: Court found plaintiff primarily responsible for breakdown of discovery for failing to produce requested ESI or to provide satisfactory explanation of the problems precluding production but declined to order exclusion of all evidence supporting ?diminution in value? claim where plaintiff produced substantial financial information and produced the requested ESI in hard copy, where plaintiffs violated no court order, where the failure to produce was temporally limited to two ?short periods of time?, and where plaintiffs apparent ability to produce the requested ESI would prevent any prejudice; court gave defendant option of receiving ESI on ?searchable CD? or receiving the computer on which the ESI was stored for expert examination

Nature of Case: Adversary proceeding in bankruptcy

Electronic Data Involved: Financial data in electronic format

In re Subpoenas, 692 F.Supp.2d 602 (W.D.Va. 2010)

Dec 01 2010

Key Insight: Where recipient of government subpoenas refused to comply on grounds of unreasonableness and burden, court approved government?s offer to reduce number of custodians from 13 to 3 (out of a workforce of approximately 72,000) and ordered recipient to produce live emails and snapshot of emails from backup tapes for each of the years between 2002 and 2008 which, the court noted, had been preserved for other litigation

Nature of Case: Government investigation

Electronic Data Involved: Email, snapshot of email from backup tapes

Edelen v. Campbell Soup Co., 2010 WL 774186 (N.D. Ga. Mar. 2, 2010)

Dec 01 2010

Key Insight: Court ordered 4 pages of privileged documents be returned to defendants where the pages were privileged on their face and inadvertently produced (4 pages of privileged material were produced among 2000 pages and the documents were subject to review by three attorneys prior to production) and where counsel immediately sought their return upon discovery of their production; court ordered narrowing of search terms and fewer custodians upon defendants? objection to plaintiffs? proposed scope (including 55 custodians and 50 search terms) where plaintiff failed to respond to the objection within the ten day period provided by the court

Nature of Case: Employment litigation

Electronic Data Involved: ESI, privileged materials

U.S. v. Bortnick, 2010 WL 935482 (D. Kan. Mar. 11, 2010)

Dec 01 2010

Key Insight: Where the government proposed that expert?s access to hard drive seized from defendant be contingent upon submitting to search of expert?s person and equipment before leaving the Sherriff?s department after each visit, court found the search rendered the drive ?not reasonably available? and ordered the restriction lifted or, if the Sherriff was unwilling or unable to do so, that the drive be made available to defendant?s expert in a ?safe room? at the courthouse under the conditions proposed by defendant

Nature of Case: Criminal prosecution related to child pornography

Electronic Data Involved: Copy of hard drive seized by police

Sunnen Prods. Co. v. Travelers Casualty and Surety Co. of Am., 2010 WL 743663 (E.D. Mo. Feb. 25, 2010)

Dec 01 2010

Key Insight: Where plaintiff sought discovery regarding similar insurance policies, claims and lawsuits of other insureds, court found the information ?discoverable? and rejected defendant?s claims of undue burden based on alleged inability to conduct an electronic search citing a prior court decision (involving defendant and similar claims of burden) for the proposition that plaintiff would not be denied discovery because of defendant?s election ?to have inadequate mens [sic] of accessing data?

Nature of Case: Insurance litigation

Electronic Data Involved: ESI

In re Hecker, 2010 WL 654151 (Bankr. D. Minn. Feb. 23, 2010)

Dec 01 2010

Key Insight: Where debtor committed numerous discovery violations including making misrepresentations to the court regarding his possession of relevant ESI and the completeness of his productions, among other things, and where debtor ?intentionally withheld relevant, admissible evidence in order to delay and obfuscate?, court granted plaintiff?s motion for default judgment after finding that ?no lesser sanction would result in defendant?s compliance?

Nature of Case: Adversary proceeding in bankruptcy

Electronic Data Involved: ESI

Kohler v. Kindred Nursing Ctrs., Inc., 2010 WL 709182 (Cal. Ct. App. Mar. 2, 2010)

Dec 01 2010

Key Insight: Appellate court upheld ruling that copies of website attached to affidavit attempting to establish contacts sufficient for personal jurisdiction were not authenticated and therefore inadmissible where affiant asserted that the pages were copies of defendant?s website but failed to present evidence showing the website was created by defendant or that the statements in the printouts were made by persons authorized to speak on defendant?s behalf; court noted that ?self-authenticating? provisions in Evidence Code ?operates to establish only that a computer?s print function has worked properly. The presumption does not operate to establish the accuracy of the printed information.?

Nature of Case: Claims arising from death of patient while in nursing facility

Electronic Data Involved: Printed pages from website

Archive - December 2010