December 1, 2011 – Page 18 – Electronic Discovery Law

Diesel Mach., Inc. v. Manitowoc Crane, Inc., No. CIV 09-4087-RAL, 2011 WL 677458 (D.S.D. Feb 16, 2011)

Dec 01 2011

Key Insight: Where parties had an agreement to produce in native format which the court had approved and adopted but later agreed that defendant could produce some information in hard copy (in light of defendant?s representation that hard copy production could be more quickly accomplished prior to pending depositions), the court found the parties agreement to produce in native format was modified and declined to compel re-production citing the burden and expense (including duplication of time and expense of conducting redactions, for example)

Nature of Case: Breach of contract and claims arising from South Dakota Dealer Protection Act

Electronic Data Involved: ESI produced in hard copy

ANZ Advanced Techs., LLC v. Bush Hog, LLC, 2011 WL 814463 (S.D. Ala. Jan. 26, 2011)

Dec 01 2011

Key Insight: Where plaintiffs admitted to fabricating evidence and failed to comply with court orders to produce certain hard drives and other data storage and instead argued, among other things, that the hard drives etc. were in possession of an unrelated foreign corporation (ANZ International) and that ANZ USA was not involved in the discovery violations (including the fabrication of evidence), the court rejected such arguments upon establishing the connection between ANZ Int. and ANZ USA and ordered that plaintiffs? claims be dismissed

Nature of Case: Contract dispute

Electronic Data Involved: Fabricated evidence, hard drives, other storage devices

In re Royce Homes, LP, No. 09-32467-H4-7, 2011 WL 873428 (Bankr. S.D. Tex. Mar. 11, 2011)

Dec 01 2011

Key Insight: Court rejected employee of debtor?s assertions of privilege where employee failed to properly assert such privilege in his privilege log; assuming arguendo that emails were privileged, court found that employee had waived privilege in several ways: 1) employee had no reasonable expectation of privacy in communications sent or received on employer?s computer system and thus had no privilege in communications with his attorney; 2) employee provided unqualified access to emails by third parties, one of whom he asked to review his emails to identify which were privileged despite her lack of legal education; and 3) employee allowed trustee to have unqualified access to the emails by failing to object to their production to the trustee when informed that the emails would be produced

Nature of Case: Bankruptcy

Electronic Data Involved: Emails between employee and attorney sent on company computer system

Peterson v. Seagate, 2011 WL 861488 (D. Minn. Jan 27, 2011)

Dec 01 2011

Key Insight: Where court found that plaintiffs? EEOC claims did not provide sufficient notice of the likelihood of a nationwide class action and where defendant destroyed the ESI of the former employees at issue in accordance with its usual document retention policies, court found that plaintiff had failed to show that information was destroyed in an effort to suppress the truth or that they had suffered any prejudice and declined to order sanctions

Nature of Case: Class action alleging age discrimination in employment

Electronic Data Involved: ESI of former employees

Hock Foods, Inc. v. William Blair & Co., LLC, No. 09-2588-KHV, 2011 WL 884446 (D. Kan. Mar. 11, 2011)

Dec 01 2011

Key Insight: Based upon affidavits of defendant?s General Counsel and Litigation Technology Project Manager identifying the burden of responding to plaintiff?s requests for production, including potentially searching 12,786 boxes of hardcopy and 12 terabytes of data, court denied motion to compel but ordered defendant to provide a supplemental response to plaintiff?s request after conducting less burdensome searches and encouraged cooperation to agree upon what those searches would entail; court also denied motion to compel additional searching for particular issues where defendant estimated the cost of search per gigabyte at between $100 and $300 with a total resulting cost of between $1.2 million and $3.6 million

Nature of Case: Dispute regarding proper payment pursuant to contract

Electronic Data Involved: ESI

In re Delta/AirTran Baggage Fee Antitrust Litig., 770 F. Supp. 2d 1299 (N.D. Ga. 2011)

Dec 01 2011

Key Insight: Providing significant analysis of the issue of spoliation, court denied plaintiff?s motion for sanctions for defendant?s alleged failure to adequately preserve evidence where government?s investigation did not trigger a duty to preserve evidence as to the class action plaintiffs in this case and thus, no duty to preserve existed for purposes of the spoliation analysis; court also found that even where duty to preserve existed, plaintiffs also failed to establish prejudice resulting from the alleged failure to preserve and that defendant acted in bad faith by failing to prevent the loss of ESI pursuant to defendant?s usual document retention policies and the automatic functions of its server

Nature of Case: Class action related to alleged collusion in implementation baggage fees

Electronic Data Involved: Emails, ESI

Ashton v. Knight Transp., Inc., No. 3:09-CV-0759-B, 2011 WL 734282 (N.D. Tex. Feb. 22, 2011)

Dec 01 2011

Key Insight: Where, in a case arising from a fatal accident, the court determined that defendants? failure to preserve the tires of the involved truck and Qualcomm messages between the driver and the truck company was in bad faith and where that failure resulted in prejudice to the plaintiff, the court ordered that defendants? pleadings and defenses to liability be struck and, ?because defendants? misconduct led to the late discovery of a potential claim for punitive damages,? granted plaintiff leave to file an amended her complaint to add such a claim

Nature of Case: Hit and run

Electronic Data Involved: Qualcomm messages (“email type messages”)

Estate of Carlock v. Williamson, 2011 WL 308608 (C.D. Ill. Jan. 27, 2011)

Dec 01 2011

Key Insight: Court found no waiver of privilege where the email at issue was inadvertently produced (as the result of plaintiff?s access to defendants? servers); where defendants took sufficiently reasonable steps to prevent disclosure as evidenced by the parties? ?repeated discussions about key word limitations? and ?broad protective order? and because ?Defendants repeatedly and specifically emphasized their concern over how Plaintiff was handling any attorney-client communications it came across?; and where defendants acted promptly to rectify the problem upon receiving notice of the inadvertent production. Accordingly, court granted defendant?s motion to strike plaintiff?s motion for sanctions which relied on the privileged email but left open plaintiff?s opportunity to re-file upon removing all reference to the privileged message

Nature of Case: Litigation arising from death of inmate while incarcerated

Electronic Data Involved: Litigation hold spreadsheet, privileged email

Lowy v. Peacehealth, 247 P.3d 7 (Wash. Ct. App. 2011)

Dec 01 2011

Key Insight: Appellate court reinstated original order compelling defendants? to search its quality assurance database for records pertaining to incidents similar to plaintiff?s and denied defendants? motion for a protective order where RCW 70.41.2003 prevents defendants? from allowing a review of such records by ?outside persons? but where an internal review for the purpose of identifying responsive records would not be in violation of the statute

Nature of Case: Medical malpractice

Electronic Data Involved: Information related to claims similar to plaintiff’s

Liberty Media Holdings, LLC. v. Does 1-59, 2011 WL 292128 (S.D. Cal. Jan. 25, 2011)

Dec 01 2011

Key Insight: Plaintiff?s motion for leave to take immediate discovery to obtain information sufficient to identify Does 1-59 (by serving subpoenas upon their internet service providers and cable providers) was granted where plaintiff identified the missing parties with sufficient specificity to allow the court to determine that the parties could be sued in federal court, where there were no other means by which plaintiff could obtain the information sought, and where plaintiff?s action could withstand a motion to dismiss

Nature of Case: Unlawful access to stored communications and copyright infringement

Electronic Data Involved: Name of subscriber

Archive - December 1, 2011