December 1, 2011 – Page 9 – Electronic Discovery Law

Miller v. Four Winds Int. Corp., No. 2:10-cv-00254-CWD, 2011 WL 5080032 (D. Idaho Oct. 25, 2011)

Dec 01 2011

Key Insight: Where plaintiff testified in deposition that she had saved relevant voice messages two years prior and that they were still available but later indicated that the messages were lost as a result of water damage to her phone and the passage of time (her service carrier indicated the messages were automatically deleted after a certain time), the court found that because she had previously indicated that the messages were available and because there was no evidence presented of when the messages became inaccessible, spoliation had occurred; court indicated an adverse inference ?may be appropriate? but withheld a final determination until it could consider the evidence offered at trial

Nature of Case: Product liability

Electronic Data Involved: Voicemail

Osborne LLC v. C.H. Robinson Co., No. 08 C 50165, 2011 WL 5076267 (N.D. Ill. Oct. 25, 2011)

Dec 01 2011

Key Insight: Where defendant ?was late in responding to some of plaintiff?s discovery requests, and failed to respond to Plaintiff?s good faith attempts to open a dialogue about electronic discovery? and where there was evidence that defendant knew what plaintiff was seeking but ?was deliberatively evasive and caused unnecessary delay? (by failing to produce relevant records because plaintiff had not specifically asked for documents containing specific terms, for example) the court indicted that defendant?s actions were not in line with the Federal Rules, the Seventh Circuit?s Pilot Program principles, or the Sedona Principles and ordered payment of certain of plaintiff?s fees and costs; court noted Plaintiff?s contributions to the delays by ?aggressively pursuing motions to compel and for sanctions when there may have been opportunities for more amicable resolutions? and thus declined to impose cost or fees related to duplicative or repetitive motions

Nature of Case: Breach of contract

Electronic Data Involved: ESI

People v. Saibu, D054980, 2011 WL 73314 (Cal. Ct. App. 2011)

Dec 01 2011

Key Insight: Where trial court admitted enhanced digital photos despite prosecution?s failure to disclose that the photograph had been enhanced, or how , but offered defendant an opportunity to remedy the prejudice and locate an opposing expert, appellate court found no abuse of discretion; appellate court found no error in trial court?s failure to require a Kelly hearing with respect to the enhancement techniques where it was ?questionable? whether the Photoshop program used could be considered a scientific technique and where the expert testified that he had been using Photoshop since for 8 years, that it was ?widely available? and ?considered an essential tool? and where an appellate court in Washington had previously determined that the enhancement of latent prints with Photoshop was ?generally accepted in the relevant scientific community?; foundation was properly laid for admission of photos where expert testified as to how they were created and where ?other witnesses? testified that the surveillance video (from which still photos were taken) accurately depicted the events they had witnessed

Nature of Case: Robbery, murder

Electronic Data Involved: Enhanced digital photo

People v. Lesser, No. H034189, 2011 WL 193460 (Cal. Ct. App. Jan. 21, 2011)

Dec 01 2011

Key Insight: Appellate court affirmed trial court?s admission of printouts of online chats preserved by a police officer, despite the fact that the version presented at trial contained emoticons that prior versions presented at preliminary examination did not or that introductory lines for the chats were not preserved in the printouts, where the officer ?offered sufficient evidence of the method by which he preserved the text? and where he testified that ?the printouts were accurate and complete? representations of the chats; the printouts were not inadmissible hearsay as argued by defendant because they were not offered for the truth of the matters asserted but rather were offered to show that defendant in fact made the statements

Nature of Case: Attempted distribution of harmful matter to a minor over the internet and related charges

Electronic Data Involved: Instant messages

Commonwealth Fin. Sys., Inc. v. Smith, No. 3435 EDA 2009, 2011 WL 489704 (Pa. Super. Ct. Feb. 14, 2011)

Dec 01 2011

Key Insight: Appellate court affirmed trial court?s exclusion of electronic business records obtained by the plaintiff from the former holders of defendant?s debt, where the trial court properly concluded that the a representative of the plaintiff corporation was not ?the right person to establish the Citibank records? (because he was not familiar with how the records were created or maintained and had no personal knowledge of the entries on the at-issue spreadsheet, for example) and held that ?CPS failed to establish the trustworthiness and reliability of the records sufficiently to permit their admission into evidence? pursuant to Pennsylvania Rule of Evidence 803(6), among other things

Nature of Case: Action to collect credit card debt

Electronic Data Involved: Electronic records

Io Group, Inc. v. GLBT, Ltd., No. C-10-1282 MMC (DMR), 2011 WL 4974337 (N.D. Cal. Oct. 19, 2011)

Dec 01 2011

Key Insight: Court granted plaintiffs? motion for sanctions and ordered adverse inference for defendants? spoliation where defendants failed to suspend the automatic deletion function on their email which deleted both incoming and outgoing emails after three to four days and where defendants admitted to deleting relevant audio visual content from their server, court also ordered payment of attorney?s fees and costs for defendants? failure to adequately respond to the court?s order for particular information related to their preservation and collection efforts; court rejected assertions that UK Data Protection Act does not permit the retention of personal information and required deletion of emails where defendant offered no evidence that the deleted data contained personal information protected by statute and also rejected the position that the court lacked authority to order production pursuant to the Data Protection Act

Nature of Case: Copyright infringement

Electronic Data Involved: ESI

Flagg v. City of Detroit, No. 05-74253, 2011 WL 4634249 (E.D. Mich. Aug. 3, 2011); Flagg v. City of Detroit, No. 05-74253, 2011 WL 4634245 (E.D. Mich. Oct. 5, 2011)

Dec 01 2011

Key Insight: For the City of Detroit?s bad faith spoliation of emails, the court declined to impose terminating sanctions but imposed a permissive adverse inference; for the City?s and its attorneys? ?bad faith disregard of their discovery obligations and the orders of this Court? which led to the destruction of evidence (including failing to disseminate a legal hold notice and Corporation Counsel?s ?utter delinquen[ce] in his duty to see that his clients complied with Judge Rosen?s orders?), the court ordered the city and Corporation Counsel to split plaintiffs? reasonable fees and costs; in its analysis related to an adverse inference, the court adopted the analysis of Forest Labs. Inc. v. Caraco Pharm. Labs., Ltd., 2009 WL 998402 (E.D. Mich. 2009), which held that an adverse inference may be appropriate in some cases involving the negligent destruction of evidence (as opposed to bad faith, which some courts have held is necessary)

Nature of Case: Minor son of murder victim alleged that defendants conducted lax investigation and deliberately ignored or actively concealed material evidence

Electronic Data Involved: Emails

Han v. Futurewei Techs., Inc., No. 11-CV-831-JM (JMA), 2011 WL 4344301 (S.D. Cal. Sept. 15, 2011)

Dec 01 2011

Key Insight: Court denied defendant?s motion for an order requiring plaintiff to allow defendant to copy the hard drives of her personal computing devices where the discovery sought was not relevant to any claims or defenses in the case, where defendant proffered no evidence of its suspicions that plaintiff stole proprietary information, and where defendant?s proposed protocol would result in ?needless accessing? of plaintiff?s personal information and would be unduly burdensome to the plaintiff; where plaintiff nonetheless indicated a willingness ?to partake in some kind of protocol to provide [defendant] with the information it seeks? and submitted her own proposed protocol, the court adopted it

Nature of Case: Employment litigation

Electronic Data Involved: Contents of Plaintiff’s personal computing devices

Orillaneda v. French Culinary Inst., No. 07 Civ. 3206(RJH)(HBP), 2011 WL 4375365 (S.D.N.Y. Sept. 19, 2011)

Dec 01 2011

Key Insight: Court found plaintiff?s request for information related to defendant?s internal search procedures and information systems did not seek relevant information and that plaintiff had not indentified facts that suggested defendant?s document production was deficient and granted defendant?s motion for a protective order stating, ?Discovery concerning these areas may be appropriate in certain circumstances, but it is not appropriate in this case unless and until plaintiff makes a specific showing that defendant?s production is deficient.?

Nature of Case: Employment discrimination

Electronic Data Involved: Information related to defendant?s internal search procedures and information systems

Estate of Wilson v. Addison, 258 P.3d 410 (Mont. 2011)

Dec 01 2011

Key Insight: Where medical facility destroyed medication records in accordance with its records-retention policy, despite a pending claim, but where the destruction was in not bad faith or an attempt to shield plaintiff from the truth and where there was no showing of prejudice, District Court did not abuse its discretion in denying plaintiff?s request for sanctions

Nature of Case: Medical Malpractice

Electronic Data Involved: Medication Records

Archive - December 1, 2011