December 1, 2012 – Page 11 – Electronic Discovery Law

Richards v. Hertz Corp., —N.Y.S.2d—, 2012 WL 5503841 (N.Y. App. Div. Nov. 14, 2012)

Dec 01 2012

Key Insight: Where the public contents of one plaintiff?s Facebook account established that it was ?reasonable to believe? that other relevant information may also be present but where lower court only directed plaintiff to produce certain relevant photographs, appellate court remanded with instruction that the court conduct in camera review of ?all status reports, emails, photographs, and videos? to determine which of those materials, if any, were relevant; as to a separate plaintiff where no showing of potential relevance was made, appellate court found lower court properly granted her motion for a protective order

Nature of Case: Personal injury arising from auto accident

Electronic Data Involved: Social Network contents

Anderson v. Otis Elevator Co., No. 11-10200, 2012 WL 5493383 (E.D. Mich. Nov. 13, 2012)

Dec 01 2012

Key Insight: Court denied motion for spoliation without prejudice where plaintiffs ?demonstrated only a suspicion of prejudice and have not been able to establish bad faith conduct on the part of the Defendant?

Nature of Case: Employment Discrimination

Electronic Data Involved: ESI, email, metadata related to excel spreadsheet

U.S. ex rel Baklid-Kunz v. Halifax Hosp. Med. Ctr., No. 6:09-cv-1002-Orl-31TBS, 2012 WL 5415108 (M.D. Fla. Nov. 6, 2012)

Dec 01 2012

Key Insight: Addressing the proper logging of privileged emails, the court adopted the position ?for which there is overwhelming support? (as cited in the opinion) ?that each email in an email string must be listed separately so that the court (and the opposing party) may make an attorney-client privilege determination with regard to each email in the string.?

Nature of Case: violations of False Claims Act

Electronic Data Involved: Emails

Fraserside IP LLC v. Gamma Entm?t., —F. Supp. 2d—, 2012 WL 4504818 (N.D. Iowa Sept. 28, 2012)

Dec 01 2012

Key Insight: In dispute over jurisdictional discovery, court concluded that plaintiff was entitled to a ?small slice? of defendant?s Google Analytics data (which tracks and accumulates data related to websites? visitors) related to the number of visitors to defendant?s website(s) from Iowa-based IP addresses; court agreed with plaintiff that it was entitled to ?more? than a hard copy PDF ?screen grab? of the relevant information and indicated that it anticipated production as HTML pages that could be opened with a standard internet browser, but that if that was not an agreeable solution, another hearing would be held

Nature of Case: Copyright infringement and related claims

Electronic Data Involved: Google Analytics

Chechelle v. Ward, No. CIV-10-1286-M, 2012 WL 4481439 (W.D. Okla. Sept. 28, 2012)

Dec 01 2012

Key Insight: Where an employer allowed employees to use its computer systems for personal business but informed employees that it reserved the right to monitor and access emails and that emails were considered business records and may be subject to discovery in litigation, the court found that an employee had waived his claims of privilege as to communications with his attorney sent from his work account because it was unreasonable to expect that his attorney-client communications would remain confidential

Nature of Case: Violation of Securities and Exchange Act

Electronic Data Involved: attorney-client communications (emails)

Mahaffey v. Marriot Int?l, Inc., —F. Supp. 2d —, 2012 WL 4833370 (D.D.C. Oct. 11, 2012)

Dec 01 2012

Key Insight: Court denied motion for sanctions for defendant?s alleged destruction of video tape and hard copy where, as to the video tape, the court determined that defendant ?could not reasonably have known? that it had an obligation to preserve the at-issue video at the time it was destroyed, and that no sanctions were therefore merited and where, as to the hard copy documents, the plaintiff was unable to establish that the at-issue documents actually existed or that, if they did, they were destroyed with the requisite culpable state of mind (where the alleged spoliation resulted from a broken sprinkler which flooded a storage room), and where even if defendant had been negligent, plaintiff could not establish that the allegedly destroyed evidence was relevant to his claims

Nature of Case: Personal injury arising from alleged elevator accident

Electronic Data Involved: Video, hard copy

State v. Fox, No. 11CA3302, 2012 WL 4946436 (Ohio Ct. App. Oct. 16, 2012)

Dec 01 2012

Key Insight: ?[B]ecause appellant failed to show that the video contained materially exculpatory evidence or that the state acted in bad faith by failing to preserve the evidence, appellant did not demonstrate that his due process rights were violated. Thus, the trial court did not err by overruling his motion to dismiss.?

Nature of Case: Criminal: assault

Electronic Data Involved: Video surveillance footage

Hunter v. State of Delaware, —A.3d—, 2012 WL 5349395 (Del. Oct. 26, 2012)

Dec 01 2012

Key Insight: Addressing the police department?s failure to preserve relevant surveillance footage of events at the police station following defendant?s arrest (by allowing it to be automatically recorded over), the Supreme Court of Delaware determined that the lost recording was not dispositive evidence and that the criminal trial was therefore not ?fundamentally unfair? and thus held that the trial court properly determined that a missing evidence instruction was a sufficient remedy and that fundamental fairness did not require a judgment on acquittal on the Assault and Resisting Arrest charges

Nature of Case: Criminal: Assault and Resisting Arrest

Electronic Data Involved: Video footage

Hageman v. Accenture, No. 10-1759 (RHK/TNL), 2012 WL 8993423 (D. Minn. Oct. 19, 2011)

Dec 01 2012

Key Insight: Analyzing a question of control, court ruled that where defendant?s employees could access emails/information stored in a third party?s server ?within his or her normal day-to-day work? then that information was within defendant?s control but that information which was not accessible to the employees was no longer in defendant?s control, and thus properly requested using a Rule 45 subpoena

Nature of Case: Employment discrimination

Electronic Data Involved: ESI/emails stored on third party server

Haskins v. First Amer. Title Ins. Co., No. 10-5044 (RMB/JS), 2012 WL 5183908 (D.N.J. Oct. 18, 2012)

Dec 01 2012

Key Insight: Court found defendant had control over files in the possession of ?independent title agents? where contracts with those agents provided defendant the right to access those files; because ?control? was established for purposes of discovery, court ordered defendant to serve a litigation hold on present and former title agents with contracts similar to those examined by the court (which established control) who sold the at-issue title insurance within the relevant time frame

Nature of Case: Alleged scheme to overcharge for title insurance

Electronic Data Involved: ESI in possession of independent title agents

Archive - December 1, 2012