2010 – Page 12 – Electronic Discovery Law

State v. Absher, 2010 WL 3860501 (N.C. App. Ct. Oct. 5, 2010)

Dec 01 2010

Key Insight: Where police department failed to preserve video surveillance footage containing images of the alleged assault at issue despite a specific written request for preservation by defendants? counsel and instead altered the tape to remove significant portions and then destroyed the original, superior court did not err in dismissing the charges against defendants because of the irreparable prejudice caused by the loss of the video tape

Nature of Case: Criminal/Assault

Electronic Data Involved: Video surveillance footage

In re Urethane Antitrust Litig., 2010 WL 4226214 (D. Kan. Oct. 21, 2010)

Dec 01 2010

Key Insight: Where plaintiffs sought a protective order to preclude discovery of a certain category of information, court denied their motion for a myriad of reasons, including rejecting arguments of undue burden and expense where the arguments were ?largely conclusory and unsupported? and where plaintiffs evidence actually established that the discovery could be reasonably undertaken as the result of work done while responding to other requests and reasoned that while responding would ?take time?, it would not be an ?inordinate? amount

Nature of Case: Price fixing, market-allocation conspiracies

Electronic Data Involved: ESI related to criminal investigation of some plaintiffs

Oto Software, Inc. v. Highwall Techs., LLC, 2010 WL 3842434 (D. Colo. Aug. 6, 2010)

Dec 01 2010

Key Insight: Court granted in part plaintiff?s motion for sanctions where defendant Highwall breached its obligation to preserve information related to the underlying royalty dispute following receipt of a letter which triggered the duty to preserve and ordered that discovery be re-opened and that defendant Highwall bear the costs but also found that the duty to preserve documents related to the development of allegedly infringing software was not triggered until the filing of the complaint and that no spoliation had occurred; court found purchaser of Highwall?s assets during pendency of the royalty dispute had no duty to preserve where the software at issue was excluded from purchaser?s acquisition

Nature of Case: Royalty dispute, copyright infringement

Electronic Data Involved: ESI

Concerned Citizens for Crystal City v. City of Crystal City, 334 S.W.3d 519 (Mo. App. Ct. 2010)

Dec 01 2010

Key Insight: Where trial court ordered a single plaintiff to produce all information in his possession or control that had been posted to a relevant web forum and where that plaintiff complied in part but withheld information that could have uniquely identified users and unposted private messages, the trial court abused its discretion in striking all plaintiffs? pleadings and dismissing their claims as a sanction for discovery violations where the request for discovery was overly broad in the first place and where the sanction imposed for failing to respond to such an overly broad request was ?unjust?

Nature of Case: Claims arising from city’s approval of development of property

Electronic Data Involved: ESI posted to website and electronic forum

Reckitt Benckiser, Inc. v. Watson Labs., Inc.-Florida, 2010 WL 4225865 (S.D. Fla. Oct. 21, 2010)

Dec 01 2010

Key Insight: Where defendant ?unilaterally deviated? from the parties? agreement to produce in TIFF format and argued that the cost of conversion was not justified because the documents were ?minimally responsive?, court upheld the agreement and ordered the defendant to re-produce 19,000 documents that had been produced in native format

Nature of Case: Patent infringement

Electronic Data Involved: ESI

Cornered, Inc. v. Does 1-2177, 2010 WL 4259605 (D.D.C. Oct. 22, 2010)

Dec 01 2010

Key Insight: Court granted plaintiff?s motion for leave to seek discovery prior to the Rule 26(f) conference for the purpose of identifying the unknown Doe defendants by allowing plaintiff to serve Rule 45 subpoenas on the relevant Internet Service Providers (ISPs), but required the ISPs to provide written notice to the subscribers in question to provide them an opportunity to move to quash

Nature of Case: Copyright infringement

Electronic Data Involved: Names of ISP subscribers

Romero v. Allstate, 2010 WL 4138693 (E.D. Pa. Oct. 21, 2010)

Dec 01 2010

Key Insight: Court granted plaintiffs? request for production of documents in native format and rejected defendants? arguments that plaintiffs must show a ?particularized need? for metadata where ?multiple courts? have held the burden falls to the objecting party to establish hardship or expense and where defendants failed to show how such a production would negatively impact them and noted that were such a showing necessary, plaintiff would have satisfied it; court ordered parties to meet and confer regarding the search terms, additional custodians, and other ?essential details about [defendants?] search methodology? going forward but declined to compel defendant to disclosure the methods utilized for past searching where such an order would result in undue burden to defendants; court declined to compel defendants to certify that they had complied with their discovery obligations absent evidence of spoliation

Nature of Case: Class action

Electronic Data Involved: ESI, metadata

Hennigan v. Gen. Elec. Co., 2010 WL 4189033 (E.D. Mich. Aug. 3, 2010)

Dec 01 2010

Key Insight: Court granted plaintiff?s motion to compel production of data related to certain product defects and ordered defendant to bear plaintiff?s costs incurred for the 30(b)(6) deposition which revealed the existence of accessible, relevant information upon finding that both defendant and counsel failed to take reasonable efforts to locate responsive information; court ordered defendant?s to conduct searches using plaintiffs? proposed terms where the information sought was relevant and where defendant?s proposed terms were too narrow to identify all responsive information

Nature of Case: Product liability

Electronic Data Involved: Incident reports

People v. Jobe, 2010 WL 4106708 (Cal. App. Ct. Oct. 20, 2010)

Dec 01 2010

Key Insight: Trial court did not err by refusing to dismiss based on prosecutions failure to preserve potentially exculpatory video surveillance tape where the tape was never in the possession of the State but rather remained in the possession of the market and where the exculpatory value of the video was not apparent, and thus there was no evidence of bad faith

Nature of Case: Attempted robbery

Electronic Data Involved: Video surveillance footage

Martinez v. Rycars Constr., LLC, 2010 WL 4117668 (S.D. Ga. Oct. 18, 2010)

Dec 01 2010

Key Insight: Court granted defendant?s motion to quash subpoena to defendant?s telecommunication vendor seeking production of any and all cell phone records, emails, and text messages sent between January 2008 and the present for the purpose of discovering evidence of defendant?s drug use where the request was overly broad and potentially cumulative; court noted that a more targeted request may have been more appropriate but still questioned how the provider would be able to ?sift? the data to identify specifically relevant communications

Nature of Case: Personal Injury

Electronic Data Involved: Communication data from cell phone service provider

Archive - 2010