December 2011 – Page 13 – Electronic Discovery Law

Pink Lotus Entm?t, LLC v. Does 1-46, No. C-11-002263 HRI, 2011 WL 2470986 (N.D. Cal. June 21, 2011)

Dec 01 2011

Key Insight: After consideration of the four relevant factors to determine whether there is good cause to allow expedited discovery and upon a determination that plaintiff had met its burden, court granted motion to allow expedited discovery for the limited purpose of obtaining indentifying information from alleged infringers? ISPs

Nature of Case: Copyright Infringement

Electronic Data Involved: Identifying information from internet service providers

DFSB Kollective Co., Ltd. v. Jenpoo, No. 11-1050 SC, 2011 WL 2314161 (N.D. Cal. June 10, 2011)

Dec 01 2011

Key Insight: Court granted in part motion to conduct expedited discovery for the purpose of identifying alleged copyright infringer(s) and specified the Internet Service Providers to whom subpoenas may be served but declined to allow discovery from entities not sufficiently connected to the allegations or to allow discovery of information related to email addresses not related to the allegations

Nature of Case: Copyright infringement

Electronic Data Involved: Identifying information from Internet Service Providers

Jimena v. UBS AG Bank, Inc., No. 1:07-cv-00367 OWW SKO, 2011 WL 2551413 (E.D. Cal. June 27, 2011)

Dec 01 2011

Key Insight: Court found plaintiff failed to properly authenticate emails allegedly sent to him by Clive Standish pursuant to either Evidence Rule 901(b)(1), permitting authentication through the testimony of a witness with personal knowledge, or Rule 901(b)(4) which allows authentication by appearance, contents, substance, internal patterns, or other distinctive characteristics taken in conjunction with circumstances and, absent admissible evidence to create a triable issue of material fact, granted defendant?s motion for summary judgment

Nature of Case: Fraud

Electronic Data Involved: Emails

Couch v. Wan, No. 1:08cv1621 LJO DLB, 2011 WL 2551546 (E.D. Cal. June 24, 2011)

Dec 01 2011

Key Insight: After defendant reported that the estimated cost of searching its electronically stored information using the search terms provided by plaintiff would be ?at least $54,000? because of the need to hire an outside contractor to assist, the court found that the discovery requests imposed a burden on the defendant that warranted cost shifting and ordered the parties to met and confer to determine an appropriate cost sharing agreement; Reconsideration denied in Couch v. Wan, No. CV F 08-1621 LJO DLB, 2011 WL 291118 (E.D. Cal. July 20, 2011)

Nature of Case: Violations of their free speech rights and violations of the Racketeer Influenced Corrupt Organizations Act (“RICO”)

Electronic Data Involved: ESI

SPM Resorts, Inc. v. Diamond Resorts Mgmt., Inc., 65 So.3d 146 (Fla. Dist. Ct. App. 2011)

Dec 01 2011

Key Insight: Court granted certiorari review and quashed order for plaintiff to pay half the cost of inspection of its own computers where the court reasoned that ?[t]o place a substantial financial burden on a party relating to the production of its adversary?s discovery request does nothing more than require a party to fund its adversaries litigation? and where the order was ?unreasonable and unduly oppressive and [wa]s a departure from the essential requirements of the law.?

Nature of Case: Interference with business relationship

Electronic Data Involved: Computer inspection

Kermode v. Univ. of Miss. Med. Ctr., No. 3:09-CV-584-DPJ-FKB, 2011 WL 2619096 (S.D. Miss. July 1, 2011)

Dec 01 2011

Key Insight: Court denied motion for spoliation sanctions where plaintiff failed to establish the existence of the allegedly spoliated emails and where, if the emails had existed, they would have been automatically deleted prior to the trigger of defendant?s duty to preserve and thus would not have been lost in bad faith; court?s analysis included discussion of trigger of duty to preserve and reasoned that meetings between accused professor and his department head and/or program director regarding alleged unwanted interactions with student did not trigger university?s duty to preserve because there was no evidence to suggest that either the department head or program director should have reasonably anticipated litigation at that time (citing Zubulake v. UBS Warburg, LLC, 220 F.R.D. 212 for proposition that ?Merely because one or two employees contemplate the possibility that a fellow employee might sue does not generally impose a firm wide duty to-preserve.?)

Nature of Case: Wrongful termination

Electronic Data Involved: Emails

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

Archive - December 2011