December 2010 – Page 9 – Electronic Discovery Law

Ferron v. Echostar Satellite, LLC, 2010 WL 5395716 (6th Cir. Dec. 28, 2010)

Dec 01 2010

Key Insight: Where defendants produced a CD containing responsive ESI, including links to relevant graphic images which plaintiff viewed, but where the links eventually ?expired? and the images could no longer be seen and where defendants thereafter refused to produce printed copies of the previously produced advertisements, the court denied plaintiff?s motion for sanctions where plaintiff had a duty to preserve relevant evidence in his possession but failed to take steps to preserve the images for future use

Nature of Case: Violations of Ohio Consumer Sales Practices Act

Electronic Data Involved: Expired links to relevant images

Lynch v. Int. Assoc. of Machinist & Aerospace Workers, AFL-CIO, 2010 WL 5299879 (E.D. Wis. Dec. 17, 2010)

Dec 01 2010

Key Insight: Where defendant claimed it did not regularly maintain the information requested and that to search for such information manually in its database would result in substantial cost, the court found that plaintiff had not shown that the likely results of a search would produce admissible evidence or that such evidence could justify the expense to defendant and denied plaintiff?s motion to compel, including plaintiff?s request for the entire database to be produced; where plaintiff?s request ?showed a preference for maintaining functionality but did not specify a format for response? and where the request for Excel format was verbal and occurred after defendant had begun to generate its production in Word format, court found production in Word format was sufficient and that defendant did not convert the information to remove functionality in contravention of Rule 34

Nature of Case: Allegations arising from union’s failure to pursue plaintiff?s grievances following his retirement

Electronic Data Involved: Database

VocalSpace, LLC v. Lorenso, 2010 WL 5247451 (E.D. Tex. Dec. 16, 2010)

Dec 01 2010

Key Insight: Where, despite a clear duty to preserve, defendant transferred relevant data to a new server and then erased and sold the old servers, and where, as a result, ?log files? were lost, the court found that the evidence ?falls short? of evidencing bad faith and declined to impose ?death penalty sanctions? but ordered that the admission of evidence of defendants? preservation efforts and evidence destruction was appropriate and ordered that evidence of the circumstances surrounding the destruction of the servers would be allowed at trial

Nature of Case: Copyright infringement, misappropriation of trade secrets, breach of fiduciary duty, etc.

Electronic Data Involved: ESI, “log files”

Cruz v. G-Town Partners, L.P., 2010 WL 5297161 (Del. Super. Ct. Dec 3, 2010)

Dec 01 2010

Key Insight: Court denied motion for adverse inference for defendant?s ?inadequately explained, perhaps even suspect? inability to produce photographs of the alleged accident scene (the bathroom of plaintiff?s apartment) where plaintiff ?did not exhaust every available mechanism to obtain these photographs? (by failing to obtain a forensic analysis of the computers alleged to have stored the photos, for example) and where the facts underlying the absence of the photos were ?sufficiently equivocal and incomplete to defeat plaintiff?s claim of entitlement to an adverse inference? and where the probative value of the photos was ?speculative at best?; court?s denial of adverse inference resulted in denial of application of Res Ipsa Loquitur and thus the entry of summary judgment in favor of defendants

Nature of Case: Personal Injury

Electronic Data Involved: Photographs stored electronically and sent via email

Goshawk Dedicated, Ltd. v. Amer. Viatical Servs., LLC, 2010 WL 5250360 (N.D. Ga. Oct. 4, 2010)

Dec 01 2010

Key Insight: Clarifying the nature of its order regarding costs, court stated that its prior order requiring plaintiff to deposit funds into the court registry sufficient to cover the third party?s anticipated costs of producing ESI specifically excluded attorney?s fees but did not preclude recovery of them, and ordered compliance with its prior order

Nature of Case: Fraud and negligence claims

Electronic Data Involved: ESI

Revello v. Med-Data Infotech USA, Inc., 2010 WL 4967968 (Fla. Dist. Ct. App. Dec. 8, 2010)

Dec 01 2010

Key Insight: Court quashed order directing production of defendant?s source code where, despite claiming misappropriation of its trade secret, plaintiff declined to produce its own source code and thus ?neither identified with reasonable particularity the nature of its claimed trade secret nor established that it exists? and was therefore not entitled to the source code it sought from the defendant

Nature of Case: Misappropriation of trade secret

Electronic Data Involved: Source code

EEOC v. Supervalu, Inc., 2010 WL 5071196 (N.D. Ill. Dec. 7, 2010)

Dec 01 2010

Key Insight: Court denied plaintiff?s motion to compel production of portions of defendants? human resources database where defendants showed that it would take at least a week, perhaps longer, to write the code necessary to pull the requested data and where the information sought required ?significant analysis? and relied on an unproven assumption such that plaintiff did not establish that ?the purported relevance or benefit of the information outweigh[ed] the burden or expense of producing it?

Nature of Case: Violations of ADA

Electronic Data Involved: Portion of Human Resources database

Union Pump Co. v. Centrifugal Tech., Inc., 2010 WL 186616 (5th Cir. Dec. 16, 2010)

Dec 01 2010

Key Insight: Noting the need to wield a court?s inherent power to impose sanctions with ?great restraint?, the appellate court found the trial court did not abuse its discretion in declining to impose attorney?s fees as an additional sanction for defendant?s spoliation where the court provided an adverse inference instruction to the jury and where the trial court found the jury?s verdict provided ?adequate compensation? for plaintiff?s claims; appellate court noted plaintiff?s failure to renew its request for fees based on spoliation following the jury?s verdict

Nature of Case: Misappropriation of trade secrets, unfair competition

Electronic Data Involved: ESI, hard drives, backup tapes

Living Scriptures, Inc. v. Doe(s), 2010 WL 4687679 (D. Utah. Nov. 10, 2010)

Dec 01 2010

Key Insight: Court granted motion for expedited discovery to discover the identity of the alleged copyright infringers for the purposes of commencing litigation and for seeking a preliminary injunction noting that courts have ?routinely? allowed such discovery and that the information sought was ?transitory in nature? and necessary to initiate the action

Nature of Case: Copyright infringement

Electronic Data Involved: Does’ identities

Gutman v. Klein, 2010 WL 4975554 (E.D.N.Y. Aug. 29, 2010)

Dec 01 2010

Key Insight: Court denied defendants? motion for sanctions for allegedly ?producing a non-business-related hard drive in place of a hard drive they were supposed to produce? where defendants delayed too long in bringing the motion by waiting more than four years after the events in question and nearly two years after the court invited such a motion; addressing briefly the merits of defendants? claims, the court found the argument to be ?flawed? where defendants mischaracterized the court?s order for production and plaintiff?s testimony regarding the computers in his office

Nature of Case: Accusations of fraud

Electronic Data Involved: Hard drives

Archive - December 2010