December 2010 – Page 26 – Electronic Discovery Law

Orion Corp. v. Sun Pharm. Idus., Ltd., 2010 WL 686545 (D.N.J. Feb. 22, 2010)

Dec 01 2010

Key Insight: Court held plaintiff?s and third party?s claims of privilege as to redacted and withheld portions of presentations waived where plaintiff and third party failed to meet their burden of establishing the claim of privilege by failing to establish that all persons to whom the presentation was disseminated or shown were ?individuals who needed to know the information contained in the presentation? as would be required to maintain the privilege

Nature of Case: Patent infringement

Electronic Data Involved: Presentations

Melendres v. Arpaio, 2010 WL 582189 (D. Ariz. Feb. 12, 2010) (Unpublished)

Dec 01 2010

Key Insight: Where defendant?s failure to communicate plaintiff?s preservation request and failure to implement a litigation hold resulted in the destruction of data, court ordered adverse inference related to the destruction of a particular category of evidence but delayed the imposition of sanctions for the destruction of email where efforts to retrieve those emails from backup systems were ongoing and ordered defendant to submit an explanation of their retrieval efforts with specific topics to be addressed

Nature of Case: Class action

Electronic Data Involved: Emails, hardcopy evidence

Whitby v. Chertoff, 2010 WL 431974 (M.D. Ga. Feb. 2, 2010)

Dec 01 2010

Key Insight: Court denied plaintiff?s motion for sanctions for a myriad of alleged violations, including failure to preserve emails and failure to adequately search for responsive ESI, where plaintiff failed to offer sufficient evidence of such violations and where the court found defendant?s search was reasonable; court ordered defendant to show cause why it failed to produce emails from certain supervisors in response to the court?s prior order where plaintiff offered evidence that such emails existed

Nature of Case: Employment Discrimination

Electronic Data Involved: ESI, email

People v. Taylor, 922 N.E.2d 1235 (Ill. App. Ct. 2010)

Dec 01 2010

Key Insight: Where defendant objected that state failed to properly authenticate silent surveillance video, appellate court agreed and concluded that ?where no witness can testify as to the authentication of the recording as truly and accurately portraying what he or she has seen or heard, the requirements for a silent-witness foundation must be met?

Nature of Case: Theft of property less than $300

Electronic Data Involved: Surveillance video

U.S. Bank Nat?l Assoc. v. Parker, 2010 WL 559135 (E.D. Mo. Feb. 10, 2010)

Dec 01 2010

Key Insight: Considering both the ?good cause? standard and the ?preliminary injunction-style analysis? court determined plaintiff was not entitled to expedited discovery to conduct forensic examination of defendant?s cell phone, PDA, and personal computer where defendant assured the court the relevant data would be preserved and where plaintiff failed to show the potential for spoliation or resulting prejudice

Nature of Case: Breach of a Confidentiality and Non-Solicitation Agreement, tortious interference with Plaintiff’s relationships with its clients and misappropriation of Plaintiff’s trade secrets

Electronic Data Involved: ESI

Victor v. R.M. Lawler, 2010 WL 521118 (M.D. Pa. Feb. 9, 2010)

Dec 01 2010

Key Insight: Court deferred judgment regarding motion for spoliation sanctions for missing video surveillance tapes of the relevant ?cell extraction? pending defendant?s production of prison policies regarding the proper preservation of such video where the court regarded the ?question of spoliation? to be ?closely intertwined with the issue of whether the defendants followed their own operations procedures in preserving evidence?

Nature of Case: Prisoner’s civil rights lawsuit

Electronic Data Involved: Video surveillance tape

Cartel Asset Mgmt. v. Ocwen Fin. Corp., 2010 WL 502721 (D. Colo. Feb. 8, 2010)

Dec 01 2010

Key Insight: Where defendants bore the burden of persuasion when asserting that ESI was inaccessible because of undue burden or cost and where defendants? supported their claim of inaccessibility with only one declaration which lacked specific information regarding defendants? storage practices, the number of back-up or archival systems that would need to be searched, or defendants? capability to retrieve information from those back-up or archival systems, the court denied defendants? Motion for a Protective Order

Nature of Case: Misappropriation of trade secrets, breach of contract, unfair competition, unjust enrichment and fraud

Electronic Data Involved: ESI

Irwin v. Onondaga County Res. Recovery Agency, 895 N.Y.S.2d 262 (N.Y. App. Div. 2010)

Dec 01 2010

Key Insight: Appellate court modified amended order of the lower court and granted plaintiff?s petition to compel production of certain electronically stored photographs and the associated ?system? metadata in response to plaintiff?s FOIL request; court was careful to limit scope of holding to the present case such that the opinion did not address ?the issue concerning whether and when metadata of any nature is subject to disclosure under the CPLR? (Civil Practice Law Rules)

Nature of Case: Freedom of Information request

Electronic Data Involved: Electronically stored photographs and associated “system” metadata

Otsuka v. Polo Ralph Lauren Corp., 2010 WL 366653 (N.D. Cal. Jan. 25, 2010)

Dec 01 2010

Key Insight: In class action for unpaid wages, court denied plaintiffs? motion for spoliation sanctions arising from defendants? admitted failure to preserve potentially relevant video surveillance tape where, because of the primary purpose of the surveillance cameras, i.e., deterring theft, the court could not conclude that defendants was obligated to immediately identify the footage as potentially relevant to plaintiffs? wage claims and preserve it and where, when plaintiffs? claims were filed, ?much of the footage? had already been destroyed pursuant to routine recycling of the surveillance tapes

Nature of Case: Action for unpaid wages

Electronic Data Involved: Video surveillance footage

Actionlink, LLC v. Sorgenfrei, 2010 WL 395243 (N.D. Ohio Jan. 27, 2010)

Dec 01 2010

Key Insight: Where issues of material fact existed as to the willfulness of defendant?s destruction of potentially relevant ESI and as to whether such destruction ?disrupted? plaintiff?s case, court denied defendant?s motion for summary judgment as to its claim of spoliation and denied plaintiff?s request for an adverse inference as to claims 1 through 4, but indicated its willingness to entertain a motion for an appropriate jury instruction at trial

Nature of Case: Breach of confidentiality agreement and related claims, independant cause of action for spoliation

Electronic Data Involved: ESI

Archive - December 2010