December 1, 2011 – Page 16 – Electronic Discovery Law

E.I. Du Pont De Nemours & Co. v. Kolon Indus., Inc., No. 3 :09cv58, 2011 WL 1597528 (E.D. Va. Apr. 27, 2011)

Dec 01 2011

Key Insight: Court denied motion for spoliation sanctions for plaintiff?s alleged deletion of relevant ESI upon finding that because plaintiff would not have known of the relevance of information in the identified custodians? custody at the time ESI was lost, there was no duty to preserve and thus no spoliation; as to ESI alleged to have been deleted while a duty to preserve existed, the court denied sanctions absent evidence of relevance or that defendant was prejudiced by the alleged loss

Nature of Case: Misappropriation of trade secrets, theft of business information, conspiracy, etc.

Electronic Data Involved: ESI, emails

Griffin v. State, 419 Md. 343, 19 A.3d 415 (Md. 2011)

Dec 01 2011

Key Insight: Where MySpace evidence was not properly authenticated because the lower court failed to acknowledge the possibility that another person could have created the profile or message at issue, the appellate court reversed defendant?s conviction and remanded for a new trial; court suggested that message could have been properly authenticated by asking the purported creator to authenticate the profile and message, by searching the computer of the alleged creator of the message to determine whether they posted the message, or by obtaining information directly from the networking website that links the ?establishment of the profile to the person who allegedly created it and also links the posting sought to be introduced to the person who initiated it.?

Nature of Case: Murder conviction

Electronic Data Involved: MySpace evidence

Roth v. Sloan, No. 1:08 CV 1656, 2011 WL 1298498 (N.D. Ohio Mar. 31, 2011)

Dec 01 2011

Key Insight: Court denied plaintiff?s motion for spoliation sanctions where plaintiff failed to establish that the accused spoliator had custody and control of the allegedly spoliated audiotape and where the plaintiff was not prejudiced in light of his receipt of a transcript of the tape

Nature of Case: Witness intimidation, retaliation, defamation or false-light invasion of privacy

Electronic Data Involved: Audio tape

Ingersoll v. Farmland Foods, Inc., No. 10-6046-CV-SJ-FJG, 2011 WL 1131129 (W.D. Mo. Mar. 28, 2011)

Dec 01 2011

Key Insight: Court denied plaintiff?s motion to compel defendant?s production of its litigation hold where such letters are generally not discoverable absent evidence of spoliation; resolving dispute related to how to initially proceed with discovery of ESI, court approved defendant?s proposal to utilize search terms for the identification of potentially responsive information and to sample those results to determine the success of the terms; court also ordered that plaintiff be provided access to the search term ?hits? so that ?both sides may have an opportunity to determine the efficacy of the sampling.?

Nature of Case: Employment claims related to payment for ?donning and doffing?

Electronic Data Involved: ESI

McCargo v. Texas Roadhouse, Inc., No. 09-cv-02889-WYD-KMT, 2011 WL 1638992 (D. Colo. May 2, 2011)

Dec 01 2011

Key Insight: Where willful, bad faith spoliation of relevant video tapes despite a duty to preserve (triggered by an internal complaint of harassment and receipt of two preservation requests from plaintiff) resulted in prejudice to the plaintiff, court ordered sanctions, including an adverse inference allowing (but not requiring) the jury to infer that certain tapes would have been harmful to defendant, an order precluding defendant from the introduction of certain evidence, and a prohibition on cross examination of plaintiff?s witnesses as to certain topics

Nature of Case: Racial discrimination

Electronic Data Involved: Video

Papadoplos v. Schmidt, Ronca & Kramer, PC, 21 A.3d 1216 (Pa. Super. Ct. 2011)

Dec 01 2011

Key Insight: Appellate court affirmed sanction of dismissal of plaintiffs? claims for spoliation where plaintiff was found to have undertaken ?knowing and willful? spoliation of ?pertinent? evidence resulting in prejudice to the defendant by destroying relevant hard drives

Nature of Case: Legal Malpractice

Electronic Data Involved: ESI, hard drives

United States v. Hamilton, No. 2:11CR13-HEH, 2011 WL 1366481 (E.D. Va. Apr. 11, 2011)

Dec 01 2011

Key Insight: Employer?s policy notifying employees that there should be no expectation of privacy as to information ?sent, received, accessed, or stored? on work computer served to negate reasonable expectation of privacy for purposes of fourth amendment and to negate marital privilege as to emails stored on employee?s computer, even where those emails were sent at a time when no use policy was in place

Nature of Case: Criminal indictment

Electronic Data Involved: Email

Thermal Design, Inc. v. Guardian Building Prods., Inc., No. 08-C-828, 2011 WL 1527025 (E.D. Wis. Apr. 20, 2011)

Dec 01 2011

Key Insight: Court denied motion to compel searching of all archived email and shared network drives where significant ESI had already been produced; where defendant established that the additional searching would take several months and result in an additional cost of $1.9 million dollars, plus an additional $600,000 to review; and where plaintiffs offered little evidence to justify the burden and argued instead that because defendant was a ?series of large companies with considerable resources,? the burden was not too great; court specifically reasoned ?Courts should not countenance fishing expeditions simply because the party resisting discovery can afford to comply.?

Nature of Case: Breach of contract

Electronic Data Involved: ESI

Commonwealth v. Purdy, SJC-10739, 2011 WL 1421367 (Mass. Apr. 15, 2011)

Dec 01 2011

Key Insight: Where Commonwealth offered evidence that at-issue emails originated from an account bearing defendant?s name and acknowledged to be used by defendant; that the emails were found on the hard drive of defendant?s computer for which he supplied the passwords; that at least one email contained a picture of defendant, and that in another, he provided an accurate description of ?the unusual set of services provided by the salon and of himself (?hairstylist, art and antiques dealer, [and] massage therapist?), the judge did not err in concluding the emails were properly authenticated as having been authored by the defendant, despite defendant?s denial of the same

Nature of Case: Convictions related to prostitution

Electronic Data Involved: Emails

Hard Drive Prods., Inc. v. Does 1-118, No. C 11-01567 LB, 2011 WL 1431612 (N.D. Cal. Apr. 14, 2011)

Dec 01 2011

Key Insight: Where plaintiff demonstrated that (1) the Doe defendants are real people who may be sued in federal court; (2) it has unsuccessfully attempted to identify the Doe defendants prior to filing this motion; (3) its infringement and civil conspiracy claims against the Doe defendants could survive a motion to dismiss; and (4) there is a reasonable likelihood that service of the proposed subpoenas on the ISPs will lead to information identifying the Doe defendants, court granted motion for expedited discovery to allow plaintiffs to serve subpoenas seeking information to identify the unknown plaintiffs

Nature of Case: Copyright infringement

Electronic Data Involved: Information related to identity of Does 1-118

Archive - December 1, 2011