December 2011 – Page 3 – Electronic Discovery Law

Benefitvision, Inc. v. Gentiva Health Servs., Inc., No. CV 09-473(DRH)(AKT), 2011 WL 3796324 (E.D.N.Y. May 23, 2011)

Dec 01 2011

Key Insight: Court ordered that non-privileged portions of email chains be produced with privileged portions redacted and properly logged; court addressed formatting and substantive issues with defendants? privilege log and ordered defendants to edit their log to remove the unnecessary data that was exported into the log from the documents database (e.g., dashes, arrows, etc.) to facilitate ease of use and to amend their descriptions to provide information sufficient to analyze the viability of the privilege claim

Electronic Data Involved: Emails

In the Matter of an Application of the United State for an Order Authorizing the Release of Historical Cell-Site Information, No. `0-MC-897 (NGG), 2011 WL 3678934 (E.D.N.Y. Aug. 22, 2011)

Dec 01 2011

Key Insight: Court found reasonable expectation of privacy existed as to cumulative cell-site-location records such that they were protected by the Fourth Amendment and denied the Government?s motion pursuant to 18 U.S.C. ? 2703(c)(1) and (d) which sought two orders directing Verizon Wireless to disclose the cell-site-location records pursuant to the Stored Communications Act

Electronic Data Involved: Cell-site-location records

Pensacola Firefighters? Relief Pension Fund Board of Trustees v. Merril Lynch Pierce Fenner & Smith, Inc., No. 3:09cv53/MCR/MD, 2011 WL 3512180 (N.D. Fla. July 7, 2011)

Dec 01 2011

Key Insight: Finding good cause, the court granted intervenors? motion for a protective order prohibiting plaintiff?s discovery of intervenors? privileged emails sent over defendant?s email servers (defendant was found to have waived its privilege as to such communications) where the intervenors were employees of defendant during the pendency of government investigations; had a joint defense agreement with defendant allowing communication for purposes of furthering their defense against the investigations; and held an objectively reasonable belief that their emails would remain confidential, in spite of defendant?s internal email policies warning that they were not, in light of defendant?s general counsel?s endorsement of and participation in such joint defense discussions

Electronic Data Involved: Intervenors’ privileged emails sent over defendant’s servers

Uhlig LLC v. Shirley, No. 6:08-cv-01208-JMC, 2011 WL 2728445 (D.S.C. July 13, 2011)

Dec 01 2011

Key Insight: Court granted motion to modify imaging protocol and, after indicating its belief that ?the use of hash values eliminates the need for search limitations,? ordered a protocol modification that included an order for the expert to search for hash values to identify documents present on more than one specified computer/device

Electronic Data Involved: Contents of personal computer, storage devices

In re Clark, 345 S.W.3d 209 (Tex. Ct. App. 2011)

Dec 01 2011

Key Insight: Appellate court concluded that trial court?s order compelling plaintiff?s production of her personal computer and electronic storage devices did not provide sufficient protection for plaintiff?s potentially privileged documents where defendant?s forensic analyst would use search terms such as ?attorney? and ?lawyer? to identify potentially privileged information and, after expressing its confidence that the trial court would vacate its prior order and compel production in a manner that provided adequate protection of privileged information, conditionally granted plaintiff?s petition for mandamus indicating that ?[t]he writ of mandamus shall issue only in the event the trial court fails to act in accordance with this opinion?

Electronic Data Involved: Contents of personal computer, storage devices

Specht v. Google, Inc., No. 09 C 2572, 2011 WL 2565666 (N.D. Ill. June 27, 2011)

Dec 01 2011

Key Insight: Acknowledging that expenses related to imaging and creating electronic versions of documents are taxable when the parties have agreed to produce documents electronically, the court denied defendant?s request for recovery of such funds absent evidence that the parties agreed to electronic production; court denied recovery of expenditure for converting plaintiff?s QuickBooks database into a usable format because such costs are not recoverable

Electronic Data Involved: ESI, QuickBooks database

Tomlinson v. El Paso Corp., No. 04-cv-02686-WDM-MEH, 2011 WL 2297661 (D. Colo. June 9, 2011)

Dec 01 2011

Key Insight: Court denied request for taxation of costs related to conversion of documents into electronic format for discovery purposes where defendant failed to establish that the conversion costs were ?necessarily incurred in the case preparation?; court denied motion for taxation of costs related to creation of secure database in furtherance of responding to a legitimate discovery request where the court was not authorized to award such costs pursuant to the relevant statute and where it was unaware of authority allowing adjustments to the division of costs based on undue burden, an argument that was available ?during the discovery process?

Electronic Data Involved: Conversion of ESI

B&B Hardware, Inc. v. Fastenal Co., No. 4:10CV00317 BRW/JTR, 2011 WL 2115546 (E.D. Ark. May 25, 2011)

Dec 01 2011

Key Insight: Addressing discovery issues ?looming on the horizon? court indicated that there appeared to be no basis to require defendant to forensically image at-issue hard drives and, addressing whether defendant would be required to restore and review backup tapes which it claimed could cost $84,854,704. 90 (a number the court called ?absurdly high? on its face), found that it would be difficult for plaintiff to meet the seven factor test for good cause and that defendant had sufficiently objected to plaintiff?s request such that arguments that the backup tapes were not reasonably accessible had not been waived

Electronic Data Involved: Forensic image of hard drives, backup tapes

Adams v. Allianceone, Inc., No. 08-CV-248-JAH (WVG), 2011 WL 2066617 (S.D. Cal. May 25, 2011)

Dec 01 2011

Key Insight: Court denied motion for sanctions for defendants? production in PDF format where plaintiff?s failed to request a specific format of production; where PDF format was ?reasonably usable? in light of the problems with the native format; where Rule 34 advisory committee notes allow for the translation of electronic data to allow production in a reasonably usable format; where there was ?insufficient evidence? to suggest that the data was converted from its native format to hinder plaintiff?s search ability; and where defendant ended up producing the native data to plaintiff?s satisfaction after conferring

Electronic Data Involved: ESI

In re Reserve Fund Secs. & Derivative Litig., Nos. 09 MD.2011(PGG), 009 Civ. 4346(PGG), 2011 WL 2039758 (S.D.N.Y. May 23, 2011)

Dec 01 2011

Key Insight: Addressing question of existence of marital privilege as to messages sent and received on work computers, court found that employee had no reasonable expectation of privacy in light of employer?s policy regarding email use and that emails were not protected

Electronic Data Involved: Potentially privileged emails

Archive - December 2011