2011 – Page 16 – Electronic Discovery Law

United States v. Lanzon, 639 F.3d 1293 (11th Cir. 2011)

Dec 01 2011

Key Insight: Where detective preserved transcripts of internet chats by copying them into Word documents saved onto CD and verifying that they were identical to the original transcripts rather than preserving the original transcript on a department hard drive for purposes of saving space, defendant?s due process rights were not denied by destruction of the original transcript absent evidence that they would ?significantly contribute to his defense? and were lost as a result of bad faith; transcripts in Word documents were properly admitted in light of detective?s testimony that he participated in the chats and that the transcripts were accurate; transcripts did not violate best evidence rule absent evidence that originals were destroyed in bad faith; admission of transcripts did not violate rule of completeness; district court did not err in denying request for jury instruction on spoliation and destruction of evidence where there was no evidence that portions of chat were destroyed (because detective testified he saved conversations in their entirety) and no showing prejudice

Nature of Case: Crimnal charges related to attempt to coerce minor to engage in sezual activity

Electronic Data Involved: Chat transcripts

Cacace v. Meyer Mktg. (Macau Commercial Offshore) Co., No. 06 Civ. 2938(KMK)(GAY), 2011 WL 1833338 (S.D.N.Y. May 12, 2011)

Dec 01 2011

Key Insight: Court found duty to preserve arose upon defendant?s consultation with counsel regarding possible infringement on plaintiff?s patent but abated upon the parties? successful negotiation of licensing agreement; court found that defendant had no control and thus no obligation to preserve certain documents from an employee of a Hong-Kong based affiliate; regarding an email folder accidentally deleted following inadvertent ?exposure? to automated purge function, court declined to find the loss was a result of negligence and found that plaintiff failed to establish the relevance of information lost and declined to impose sanctions

Nature of Case: Patent infringement

Electronic Data Involved: ESI, emails

State Farm Mut. Auto. Ins. Co. v. Grafman, 274 F.R.D. 442 (E.D.N.Y. 2011)

Dec 01 2011

Key Insight: For defendants? discovery abuses, including spoliation or withholding of audio tapes of wiretapped conversations despite a court order to produce them; destruction of relevant hard drives and refusal to authorize release of copies of those drives from a third-party; and failure to produce other relevant evidence, court found that plaintiff had been prejudiced and ordered default sanctions

Nature of Case: Claims arising from fraudulent scheme to recover insurance reimbursements

Electronic Data Involved: Audio tapes, hard drives

Surowiec v. Capital Title Agency, Inc., No. CV-09-2153-PHX-DGC, 2011 WL 1671925 (D. Ariz. May 4, 2011)

Dec 01 2011

Key Insight: Highlighting that a party?s duty of preservation is owed to the court and not to a potential plaintiff, court found that defendant was grossly negligent in its failure to issue a litigation hold or take other efforts to ensure preservation of relevant evidence and ordered an adverse inference; court also found that defendant acted ?willfully in failing to timely and adequately respond to the document requests? where defendant?s search terms were not ?calculated to capture? relevant documents and where a court ordered (re)search resulted in production of thousands of documents only three days before the close of discovery and ordered defendant to reimburse plaintiff for expenses incurred as a result of the misconduct and for the reasonable attorney?s fees spent to challenge the misconduct, prepare for additional depositions, and bring the instant motion for sanctions; court?s opinion specifically declined to hold that a lack of written litigation hold was negligence per se

Nature of Case: Breach of contract, breach of fiduciary duty, etc. related to purchase of condominium

Electronic Data Involved: Emails, ESI

Int?l Med. Group, Inc. v. Walker, No. 1:08-cv-923-JMS-TAB, 2011 WL 1752101 (S.D. Ind. May 9, 2011)

Dec 01 2011

Key Insight: Where relevant evidence found on defendants? hard drive ?challenge[d]? defendants? prior assertions that they had not retained copies of certain communications and defendant Walker?s ?self characterization as a peripheral observer?, the court concluded that Plaintiff had made a prima facie showing of fraud and that defendants therefore waived their attorney-client privilege as to communications with counsel regarding: ?preservation, destruction, or location of documents or discussion of discovery obligations?

Nature of Case: Conspiracy to defame and tortuously interfere with business relationships

Electronic Data Involved: ESI

Centrifugal Force, Inc. v. Softnet Commc?n, Inc., 783 F. Supp. 2d 736 (S.D.N.Y. 2011)

Dec 01 2011

Key Insight: Court denied motion for sanctions for alleged spoliation of one email where plaintiff failed to establish that the ?destruction of the email was anything but inadvertent or that any other email was deleted? or that the email constituted relevant evidence favorable to the defendants; court?s opinion indicated that defendants? use of oral instruction to preserve evidence was acceptable; court denied motion for sanctions related to defendants? failure to preserve and produce all runtime environments for allegedly infringing software program where defendants took efforts to preserve similar evidence with the belief that such preservation was sufficient and thus did not have a sufficiently capable state of mind to establish spoliation and where plaintiff failed to establish the relevance of the allegedly spoliated evidence to its claims

Nature of Case: Copyright infringement

Electronic Data Involved: Email, computer files related to development of allegedly infringing software

E.I. Du Pont De Nemours & Co. v. Kolon Indus., Inc., No. 3 :09cv58, 2011 WL 1597528 (E.D. Va. Apr. 27, 2011)

Dec 01 2011

Key Insight: Court denied motion for spoliation sanctions for plaintiff?s alleged deletion of relevant ESI upon finding that because plaintiff would not have known of the relevance of information in the identified custodians? custody at the time ESI was lost, there was no duty to preserve and thus no spoliation; as to ESI alleged to have been deleted while a duty to preserve existed, the court denied sanctions absent evidence of relevance or that defendant was prejudiced by the alleged loss

Nature of Case: Misappropriation of trade secrets, theft of business information, conspiracy, etc.

Electronic Data Involved: ESI, emails

Griffin v. State, 419 Md. 343, 19 A.3d 415 (Md. 2011)

Dec 01 2011

Key Insight: Where MySpace evidence was not properly authenticated because the lower court failed to acknowledge the possibility that another person could have created the profile or message at issue, the appellate court reversed defendant?s conviction and remanded for a new trial; court suggested that message could have been properly authenticated by asking the purported creator to authenticate the profile and message, by searching the computer of the alleged creator of the message to determine whether they posted the message, or by obtaining information directly from the networking website that links the ?establishment of the profile to the person who allegedly created it and also links the posting sought to be introduced to the person who initiated it.?

Nature of Case: Murder conviction

Electronic Data Involved: MySpace evidence

Roth v. Sloan, No. 1:08 CV 1656, 2011 WL 1298498 (N.D. Ohio Mar. 31, 2011)

Dec 01 2011

Key Insight: Court denied plaintiff?s motion for spoliation sanctions where plaintiff failed to establish that the accused spoliator had custody and control of the allegedly spoliated audiotape and where the plaintiff was not prejudiced in light of his receipt of a transcript of the tape

Nature of Case: Witness intimidation, retaliation, defamation or false-light invasion of privacy

Electronic Data Involved: Audio tape

Ingersoll v. Farmland Foods, Inc., No. 10-6046-CV-SJ-FJG, 2011 WL 1131129 (W.D. Mo. Mar. 28, 2011)

Dec 01 2011

Key Insight: Court denied plaintiff?s motion to compel defendant?s production of its litigation hold where such letters are generally not discoverable absent evidence of spoliation; resolving dispute related to how to initially proceed with discovery of ESI, court approved defendant?s proposal to utilize search terms for the identification of potentially responsive information and to sample those results to determine the success of the terms; court also ordered that plaintiff be provided access to the search term ?hits? so that ?both sides may have an opportunity to determine the efficacy of the sampling.?

Nature of Case: Employment claims related to payment for ?donning and doffing?

Electronic Data Involved: ESI

Archive - 2011