December 2010 – Page 5 – Electronic Discovery Law

IMRA Am., Inc. v. IPG Photonics Corp., 2010 WL 2812999 (E.D. Mich. July 15, 2010)

Dec 01 2010

Key Insight: Court imposed spoliation sanction and precluded plaintiff and its expert from offering opinion or evidence on any simulations relied upon in forming the basis of plaintiff?s Second Infringement Report where the input data upon which the simulations relied were lost in a computer crash and where plaintiff failed to timely disclose the destruction

Electronic Data Involved: Input data forming basis for expert’s report

Humphrey v. Sallie Mae, Inc., 2010 WL 2522743 (D.S.C. June 17, 2010)

Dec 01 2010

Key Insight: Court granted plaintiff?s motion to conduct discovery prior to the Rule 26(f) conference where plaintiff sought to subpoena her own cell phone provider to obtain electronic data that was in danger of being purged pursuant to Verizon?s data retention policies and where the request was reasonable in light of the limited scope of the subpoena and the danger of irreparable harm to plaintiff if the data was lost

Electronic Data Involved: Electronic data in possession of cellular phone service provider

Medcorp, Inc. v. Ponpoint Tech., Inc., 2010 WL 2500301 (June 15, 2010)

Dec 01 2010

Key Insight: Where special master determined spoliation was ?willful in the sense that ?Plaintiff was aware of his responsibilities to preserve relevant evidence and failed to take necessary steps to do so? and thus ordered an adverse inference and for each party to bear half of defendant?s attorneys? fees and costs, magistrate judge affirmed the adverse inference upon determining it was the least harsh sanction that would provide an adequate remedy but vacated the award of half of defendant?s fees and, upon determining a reasonable amount, ordered plaintiff to pay the amount of $89,395.88

Electronic Data Involved: Hard drives

In re Sawstop Cases, 2010 WL 2483316 (D. Mass. June 14, 2010)

Dec 01 2010

Key Insight: Court ordered plaintiffs? production of cartridges containing relevant data (?akin to a ?black box??) that were relied upon by their expert in forming his opinions but found both parties proposed protective measures insufficient and ordered defendants to designate an expert or experts to review the cartridges, restricted access to the cartridges to defendants? expert(s) and counsel and their employees ?whose functions required access to the cartridge or cartridge information?, and ordered that each expert sign an agreement that they would not seek to develop technology similar to that at issue

Electronic Data Involved: Cartridge data “akin to a black box”

Diocese of Harrisburg v. Summix Dev. Co., 2010 WL 2034699 (M.D. Pa. May 18, 2010)

Dec 01 2010

Key Insight: Court ordered adverse inference in favor of defendant where plaintiff failed to preserve backup tapes which ?may have contained emails with evidence to support defendants? claims?, despite a duty to do so

Electronic Data Involved: Backup tapes

Hilton-Rorar v. State and Fed. Commc?ns, Inc., 2010 WL 1486916 (N.D. Ohio Apr. 13, 2010)

Dec 01 2010

Key Insight: Addressing several questions regarding attorney-client privilege and work product, court stated that ?attachments or other email communications that are not otherwise independently privileged? but are contained within or attached to a privileged email were protected by the privilege where ?the disclosure of those emails would necessarily reveal the substance of a confidential client communication made seeking legal advice? and declined to compel their disclosure or the disclosure of the emails to which they were attached

Electronic Data Involved: Privileged emails

Rosenbaum v. Becker & Poliakoff, P.A., 708 F. Supp. 2d 1304 (S.D. Fla. 2010)

Dec 01 2010

Key Insight: In an order addressing several discovery disputes court ordered re-production of information downloaded from relevant Blackberry telephones where defendant produced the requested data in hard copy and where the information was not fully readable

Electronic Data Involved: ESI from Blackberry telephones

Estate of Eva Boles v. Nat?l Heritage Realty, Inc., 2010 WL 1759026 (N.D. Miss. Apr. 27, 2010)

Dec 01 2010

Key Insight: Where production of defendants? general ledger was necessary because there was no suitable alternative to provide the information, but where defendants? counsel asserted that such production would require ?hundreds of hours? and involve great expense, court noted defendants failure to produce any details in support of its assertion and that plaintiff was willing to bear the reasonable costs and granted plaintiff?s motion to compel

Electronic Data Involved: General ledger in electronic format

In re Subpoena to Wisconsin Energy Corp., 2010 WL 715429 (E.D. Wis. Feb. 24, 2010)

Dec 01 2010

Key Insight: Court quashed non-party subpoena upon finding it unduly burdensome where non-party estimated the cost of compliance in excess of $1,000,000 and argued that the information sought was irrelevant and cumulative of information available to the plaintiff from an alternative source

Electronic Data Involved: Stochastic modeling reports

Secure Energy, Inc. v. Coal Synthetics, 2010 WL 597388 (E.D. Mo. Feb. 17, 2010)

Dec 01 2010

Key Insight: Court denied plaintiffs? motion to compel re-production of ESI in native format because the motion was untimely filed but went on to find that defendants? production of ESI in .PDF format was reasonable absent plaintiffs? request for production in native format and that compelling re-production would prejudice defendants where the metadata produced would likely necessitate additional expert involvement and discovery resulting in an adjustment to the case management schedule

Electronic Data Involved: ESI

Archive - December 2010