December 2011 – Page 15 – Electronic Discovery Law

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

Seven Seas Cruises S. De. R.L. v. V. Ships Leisure SAM, No. 09-23411-CIV, 2011 WL 772855 (S.D. Fla. Feb. 19, 2011)

Dec 01 2011

Key Insight: Where defendants ?failed to properly conduct complete, thorough and timely searches of ESI responsive to Plaintiffs? discovery requests,? which the evidence showed resulted from ?a lack of familiarity and/or training in searching and producing ESI?, the court declined to impose default judgment and instead recommended that defendants? Motions for Summary Judgment be denied and ordered that defendants retain a third party consultant or vendor to perform a search for responsive documents, that responsive ESI be produced in a prescribed format, and that defendants pay plaintiffs? attorneys fees and costs

Nature of Case: Claim for damages arising from defendants? alleged failure to provide proper ship management and care

Electronic Data Involved: ESI

CNX Gas Co. LLC v. Miller Petroleum, Inc., No. E2009-00226-COA-R3-CV, 2011 WL 1849082 (Tenn. Ct. App. May 11, 2011)

Dec 01 2011

Key Insight: Appellate court affirmed lower court?s order that shifted defendant?s costs related to the production and review of electronic discovery subject to plaintiff?s motion to compel where defendant provided ?specific facts? presented in an affidavit of its IT personnel that demonstrated that the ?electronic documents requested by CNX created an undue burden because those documents required an additional review to prevent the disclosure of privileged information? and where it was within the trial court?s discretion to ?tailor? the discovery requests, including by shifting costs

Nature of Case: Suit arising from dispute related to oil and gas leases

Electronic Data Involved: ESI

People v. Chromik, No. 3-09-0686, 2011 WL 1346923 (Ill. App. Ct. Mar. 29, 2011)

Dec 01 2011

Key Insight: Transcript of text messages created when student read the messages to her principal who typed them into a Word document and which were admittedly altered by spell check were properly admitted as evidence by the trial court where the trial court ?ensured that all knew the document was exactly what it purported to be: a transcription of the victim?s reading of the text messages?; where both parties were allowed to argue over interpretation; where defendant was allowed to present evidence that indicated spell check likely resulted in alterations; where the dates and time contained on the transcription and attributed to text messages from defendant mirrored the dates and times identified in the phone company?s records; and where the victim testified as to the content of the messages and defendant did not deny sending them

Nature of Case: Criminal sexual assault

Electronic Data Involved: Text messages

Liberty Media Holding, LLC v. Swarm of November 16, 2010 Sharing Hash File A3E6F65F2E3D672400A5908F64ED55B66A088B8, No. 11cv619 (BLM), 2011 WL 1597495 (S.D. Cal. Apr. 26, 2011)

Dec 01 2011

Key Insight: Plaintiff’s motion for permission to serve subpoenas on identified ISPs seeking information sufficient to identify Does 1-95 granted

Nature of Case: Coyright infringement

Electronic Data Involved: Names of ISP subsribers

Archive - December 2011