December 1, 2011 – Page 14 – Electronic Discovery Law

F.T.C. v. Asia Pac. Telecom, Inc., No. 10 C 3168, 2011 WL 2110220 (N.D. Ill. May 25, 2011)

Dec 01 2011

Key Insight: Court found defendants in contempt and, in the alternative, invoked its inherent authority to sanction where defendants were found to have deactivated a relevant Yahoo! email account in violation of a temporary restraining order which caused the information therein to be permanently lost and where the court found that the deactivation was in bad faith and resulted in prejudice to the plaintiff; court declined to impose default judgment but ordered adverse inferences which substantially eased plaintiff?s ability to establish liability

Nature of Case: Violations of National Do Not Call Registry

Electronic Data Involved: Web based emails

United States v. Ohle III, No. S3 08 CR 1109(JSR), 2011 WL 651849 (S.D.N.Y. Feb. 7, 2011)

Dec 01 2011

Key Insight: Court rejected defendants? assertion that government had violated is Brady obligations by producing documents in a database which was ?unduly onerous to access? in light of the large volumes of documents therein where both the government and defendant had equal access to the database and were thus ?just as likely to uncover the purportedly exculpatory evidence? and where, ?as a general rule, the Government is under no duty to direct a defendant to exculpatory evidence within a larger mass of disclosed evidence.?

Nature of Case: Criminal

Electronic Data Involved: Large volumes of documents produced in a database format

State v. McNeil, 708 S.E.2d 590 (Ga. Ct. App. 2011)

Dec 01 2011

Key Insight: Dismissal of trial for destruction of video tape of defendant?s traffic stop was reversed where appellate court concluded the lost tape did not rise to the level of constitutional materiality and was instead ?at best potentially exculpatory? and where there was no evidence that the tape was destroyed in bad faith

Nature of Case: Criminal possession

Electronic Data Involved: Videotape of traffic stop

IWOI, LLC v. Monaco Coach Corp., No. 07-3453, 2011 WL 2038714 (N.D. Ill. May 24, 2011)

Dec 01 2011

Key Insight: Where defendant failed to conduct a sufficient search for responsive information and where an important email was located only upon a forensic search of defendant?s computer system after plaintiff offered to bear the costs, court ordered that half of the costs of the search be shifted to defendant

Nature of Case: Breach of warranty and violations of certain state law proscriptions against consumer fraud in connection with sale of motorcoach

Electronic Data Involved: Email

Jacobeit v. Rich Township H.S. Dist. 227, No. 09 CV 1924, 2011 WL 2039588 (N.D. Ill. May 25, 2011)

Dec 01 2011

Key Insight: For defendant?s delayed production of certain relevant documents, including emails, court granted plaintiff permission to re-depose certain witnesses but denied his request for evidentiary and exclusionary sanctions; court found defendant had breached its duty to preserve when it destroyed an audio tape of school board meeting pursuant to the District?s normal retention policy but that culpability and prejudice were not significant and ordered that plaintiff be allowed to question a certain deponent regarding the meeting, but no other sanctions; court found defendants breached duty of preservation as to certain emails, but that prejudice was minimal, and declined to allow forensic examination of the District?s computers, but ordered that defendants bear the reasonable costs of plaintiff?s motion and reply

Nature of Case: wrongful termination

Electronic Data Involved: Emails, audio tape of board meeting

Zimmerman v. Weis Markets, Inc., No. CV-09-1535 (C.P. Northumberland May 19, 2011)

Dec 01 2011

Key Insight: Court granted Motion to Compel and ordered plaintiff to provide all passwords, user names and log-in names for any and all MySpace of Facebook accounts

Nature of Case: Claims arising from injury at work

Electronic Data Involved: Social Network

Clean Harbors Envtl. Servs., Inc. v. ESIS, Inc., No. 09 C 3789, 2011 WL 1897213 (N.D. Ill. May 17, 2011)

Dec 01 2011

Key Insight: Where plaintiff sought reimbursement of the costs of producing ESI from backup tapes but did not seek judicial intervention to narrow the requests prior to production, court considered eight factors and ruled that plaintiff and defendants should split the costs; the eight factors considered were: 1) the likelihood of discovering critical information; 2) the availability of such information from other sources; 3) the amount in controversy as compared to the total cost of production; 4) the parties’ resources as compared to the total cost of production; 5) the relative ability of each party to control costs and its incentive to do so; 6) the importance of the issues at stake in the litigation; 7) the importance of the requested discovery in resolving the issues at stake in the litigation; and 8) the relative benefits to the parties of obtaining the information.

Nature of Case: Legal malpractice

Electronic Data Involved: ESI on backup tapes

Call of the Wild, LLC v. Does 1-1062, 770 F. Supp. 2d 332 (D.D.C. 2011)

Dec 01 2011

Key Insight: Court denied third-party Time Warner?s motion to quash plaintiffs? subpoena seeking identifying information as to a number of allegedly infringing John Does where Time Warner failed to establish undue costs because plaintiff had been ordered to bear the costs of production and failed to establish undue burden, particularly where it admitted that ?more than fifty percent? of the work had already been accomplished

Nature of Case: Copyright infringement

Electronic Data Involved: Identifying information of ISP subscribers

United States v. Hock Chee Koo, No. 09-321-(2,3)-KI, 2011 WL 777965 (D. Or. Mar. 1, 2011)

Dec 01 2011

Key Insight: Where a computer analyst made a backup image of certain files on defendant?s computer and returned the laptop to defendant?s employer, who proceeded to look through the files, etc. before supplying the backup image and the laptop to the FBI, and where the FBI then made an image of the backup image and an image of the entire laptop, the court held that the image of the backup image, reflecting some of the contents of the laptop before the employer looked through the laptop?s files, could be admitted as proof of what the FBI obtained from the employer AND as evidence of some of the contents of the laptop (the backup image did not include the entire contents of the laptop); court held that FBI?s image of the whole laptop (taken after the employer had looked through the files, etc. and thus changed metadata, etc.) could be admitted as evidence of what was obtained by the FBI from the employer, but cold not be offered to prove the contents of the laptop while in defendant?s possession

Nature of Case: Theft of trade secrets

Electronic Data Involved: Backup image and image of contents of laptop

United States v. Cameron, 762 F. Supp. 2d 152 (D. Me. 2011)

Dec 01 2011

Key Insight: Images of child pornography produced by ISPs to government were properly authenticated by testimony of ISPs? legal assistants who were familiar with the process for collecting those images and the reliability and accuracy of the servers and who testified that the images offered into evidence were the same as those collected and that the images had been traced to the defendant?s computer; court reasoned that ?[i]t is not necessary for the Government to produce the actual ISP searchers in order to comply with the requirements of the Sixth Amendment?

Nature of Case: Criminal

Electronic Data Involved: Images of child pornography

Archive - December 1, 2011