December 1, 2011 – Page 13 – Electronic Discovery Law

United States v. Univ. Health Servs., Inc., No. 1:07cv000054, 2011 WL 2559552 (W.D. Va. June 28, 2011)

Dec 01 2011

Key Insight: Court denied motion for sanctions for defendant?s failure to preserve video surveillance tape where the parties initially agreed that the tapes for the thirty days preceding the subpoena need not be saved, thus creating the understanding that tape recycling could proceed as usual, and where, as a result of this agreement, defendants could not be said to have failed to preserve in bad faith; court also declined to infer spoliation absent evidence that additional, relevant ESI existed that had not been produced

Nature of Case: Violation of False Claims Act and The VA Fraud Against Taxpayers Act

Electronic Data Involved: Video surveillance tape

Vieste v. Hill Redwood Dev., No. C-09-0424 JSW (MSR), 2011 WL 2198257 (N.D. Cal. June 6, 2011)

Dec 01 2011

Key Insight: Court ordered defendants to pay sanctions equal to ?reasonable attorneys? fees and costs incurred [by Plaintiffs] in bringing this motion? where defendants were ordered to provide a detailed explanation of their preservation and collection processes but instead submitted declarations which failed to answer basic questions, answered others with minimal information, and relied on conclusory statements; court denied motion for spoliation sanctions where, despite the court?s ?serious concerns? about a certain custodian?s preservation and collection efforts, spoliation was not established, and as to other specific evidence for which the evidence of spoliation was not clear, ordered that if it had not previously been produced, defendants would be barred from its use

Nature of Case: Brach of contract and fraud

Electronic Data Involved: Email, ESI

Greene v. Netsmart Techs., No. CV 08-4971(TCP)(AKT), 2011 WL 2225004 (E.D.N.Y. Feb. 28, 2011)

Dec 01 2011

Key Insight: Where there was a delay in plaintiff?s production of relevant evidence and where handwritten notes and certain audio tapes were negligently destroyed but where no unique evidence was ultimately lost because the information was transferred to another source before its destruction, court declined to dismiss the case or to impose an adverse inference but, noting that there was ?clearly a breakdown in communication between Plaintiff and his counsel regarding document preservation and collection,? imposed monetary sanctions equal to defendant?s expenses related to efforts to obtain the relevant evidence, to be shared 50/50 by plaintiff and his counsel; Recommendation adopted by the District Court: 2011 WL 2193399

Nature of Case: Employment discrimination

Electronic Data Involved: Audio Tapes, handwritten notes

State v. L.D.G., No. 65631-1-I, 2011 WL 2176542 (Wash. Ct. App. June 6, 2011)

Dec 01 2011

Key Insight: Where video of defendant?s alleged assault was sent via email to an investigating officer but was automatically deleted by the email program, where the physical copy was ?faulty? and would not play, and where the original tape was destroyed, the court nonetheless found that defendant?s due process rights were not violated where ?the exculpatory value of the video was not apparent and the State did not act in bad faith?

Nature of Case: Assault (criminal)

Electronic Data Involved: Surveillance video

General Steel Domestic Sales, LLC v. Chumley, No. 10-cv-01398-PAB-KLM, 2011 WL 2415715 (D. Colo. June 15, 2011)

Dec 01 2011

Key Insight: Court denied motion to compel production of plaintiff?s audio calls where plaintiff asserted that defendant?s claims were ?thin? and did not specify any damages and where in light of this, plaintiff asserted that the burden of producing the requested audio recordings outweighed any potential benefit; plaintiff supported its assertions that the audio recordings were ?not reasonably accessible? with affidavits indicating the high volume of calls to review, the need to listen to each call to determine its responsiveness, the incredible time and financial costs of such a review, and the possibility that privileged calls were present in the mix such that a third party could not be relied on to assist

Nature of Case: False and misleading advertising, deceptive sales practices

Electronic Data Involved: Audio recordings of phone calls

Bower v. Bower, No. 10-10405-NG, 2011 WL 3702086 (D. Mass. Apr. 5, 2011)

Dec 01 2011

Key Insight: Court denied motion to compel Yahoo! and Google to produce emails in violation of Stored Communications Act and declined to rely upon defendant?s ?status as a fugitive? to find that she was deemed to have given consent or to issue an order requiring consent which, if defied, would allow the implication that consent had been given where the court reasoned that ?there is nothing in [defendant?s] actions from which this court can imply an intent to consent to the disclosure of her information

Nature of Case: Child abduction

Electronic Data Involved: Web-based email

Wood v. Capital One Servs., LLC, No. 5:09-CV-1445, 2011 WL 2154279 (N.D.N.Y. Apr. 15, 2011)

Dec 01 2011

Key Insight: Court denied plaintiff?s motion to compel additional discovery, including ?sweeping searches of ESI using suggested search terms? where, following significant analysis of the rule of proportionality (26(b)(2)(C)), the court determined that the ?minimally relevant information to be developed through the discovery? was ?far outweighed by the burden? associated with it, but left open plaintiff?s option to bear the cost of the discovery himself

Nature of Case: Violations of Fair Debt Collection Practices Act

Electronic Data Involved: ESI

150 Nassau Assoc. LLC v. RC Dolner LLC, No. 601879/04, 2011 WL 579061 (N.Y. Sup. Ct. Feb. 14, 2011)

Dec 01 2011

Key Insight: Court denied motion to compel production of database data in native format where the same information had been produced in PDF format, where there were no accusations of inconsistencies in the information provided, where neither party addressed the costs of the requested native production and where the native data sought could not be provided without also disclosing irrelevant confidential information

Nature of Case: Breach of contract

Electronic Data Involved: Database

Brokaw v. Davol, Inc., Nos. PC 07-5058, PC 07-4048, PC 07-1706, 2011 WL 579039 (R.I. Super. Ct. Feb. 15, 2011)

Dec 01 2011

Key Insight: Court found backup tapes not reasonably accessible in light of the cost of restoration, review and production but granted plaintiff?s motion to compel where plaintiff?s showed ?good cause for some discovery? and held the motion in abeyance until further argument on cost-shifting

Nature of Case: Products liability

Electronic Data Involved: Backup tapes

United States v. Tummins, No. 3:10-00009, 2011 WL 2078107 (M.D. Tenn. May 26, 2011)

Dec 01 2011

Key Insight: Court granted motion to compel production of defendant?s hard drive with all child pornography files redacted where the court determined that the likelihood that child pornography would remain on the drive after steps to redact were taken was ?relatively low? and where the government?s inspection accommodations in lieu of production did not provide the statutorily required ?ample opportunity for inspection? where the restrictions on inspection limited the time allowed for inspection and required the forensic examiner to leave his equipment unattended

Nature of Case: Criminal/ possession of child pornography

Electronic Data Involved: Hard drive

Archive - December 1, 2011