December 1, 2012 – Page 22 – Electronic Discovery Law

In re Oil Spill by the Oil Rig ?Deepwater Horizon? In the Gulf of Mexico, MDL No. 2179, 2012 WL 174645 (E.D. La. Jan. 20. 2012)

Dec 01 2012

Key Insight: Court denied BP?s motion for spoliation sanctions for Halliburton?s alleged loss of information concerning ?post incident cement testing? where BP had not demonstrated prejudice and, upon Halliburton?s representation that the modeling was done on a particular computer that it would submit for third-party forensic examination to determine if the modeling could be located, the court ordered the parties to meet and confer to develop a protocol for examination with costs to be shared equally and reserved BP?s right to seek additional relief

Nature of Case: Claims arising from oil spill

Electronic Data Involved: Computer modeling data/results

Fatpipe Networks India, Ltd. v. Xroads Networks, Inc., No. 2:09-CV-186 TC DN, 2012 WL 192792 (D. Utah Jan. 23, 2012)

Dec 01 2012

Key Insight: Where defendant claimed infringement based on alleged testing of defendant?s devices but claimed that no testing documentation was created and where, upon a neutral third party?s examination of the relevant devices, it was revealed that two key logs were missing expected messages and reflected abnormal device behaviors that plaintiff was unable to explain, the court held that defendant was prejudiced by plaintiff?s failure to protect and preserve the logs and the resulting inability to verify purported testing and thus ordered that all evidence of plaintiff?s testing of the devices would be precluded from introduction to the record or other use and ordered plaintiff to pay defendant?s expenses associated with the sanctions motion

Nature of Case: Patent infringement

Electronic Data Involved: Log messages, evidence of testing

In re Porsche Cars N. Amer., Inc. Plastic Coolant Tubes Prods. Liability Litig., No. 2:11-md-2233, 2012 WL 203493 (S.D. Ohio Jan. 24, 2012)

Dec 01 2012

Key Insight: Addressing Plaintiff?s motion for an Order Regarding Production of Electronically Stored Information, court limited scope of its findings and order to jurisdictional discovery and granted plaintiff?s motion to the extent that it required production of ESI in its native format with metadata intact, noting that plaintiff did not have the burden of showing why the metadata requested with native format production was relevant to each of their requests and that upon a request for production in a specific format, the burden shifts to producing party to show why it is unduly burdensome

Nature of Case: Products liability

Electronic Data Involved: ESI in native format

Tompkins v. Detroit Metro. Airport, 278 F.R.D. 387(E.D. Mich. 2012)

Dec 01 2012

Key Insight: Court denied defendant?s motion to compel plaintiff to authorize access to her Facebook account where defendant did not have the ?generalized right to rummage at will through information that Plaintiff has limited from public view? absent a threshold showing that the requested information is reasonably calculated to the lead to the discovery of admissible evidence and where defendant failed to make that showing (court noted, for example, that the pictures available for public viewing on plaintiff?s account did not show activity inconsistent with plaintiff?s claims of injury)

Nature of Case: Slip and fall

Electronic Data Involved: Facebook contents

Bean v. John Wiley & Sons, Inc., No. CV 11-08028-PCT-FJM, 2012 WL 129809 (Jan. 17, 2012)

Dec 01 2012

Key Insight: Court granted motion to compel defendant to produce a key explaining the codes used on an already-produced spreadsheet where Rule 34(a)(1)(A) ?explicitly places the burden of translating the data on the responding party? and where the task of providing plaintiff with the meaning of specifically identified acronyms was not overly burdensome compared to requiring plaintiff to figure them out using prior deposition testimony and ?informal communications with counsel?

Nature of Case: copyright infingement

Electronic Data Involved: Spreadsheet

Twitty v. Salius, No. 11-448, 2012 WL 147913 (2d Cir. Jan. 19, 2012)

Dec 01 2012

Key Insight: Appellate court found that District Court did not abuse its discretion in declining to impose an adverse inference instruction for the destruction of an original surveillance tape where the destruction was negligent and where, because of the existence of copies of the tape (albeit with slight differences in tracking, color, and audio quality), the destruction did not materially prejudice plaintiff?s case

Nature of Case: Civil rights action

Electronic Data Involved: VHS surveillance tape

Bull v. United Parcel Service, Inc., 665 F.3d (3d Cir. 2012)

Dec 01 2012

Key Insight: Circuit court found that ?producing copies in instances where the originals have been requested may constitute spoliation if it would prevent discovering critical information,? but also found that in the present case the District Court abused its discretion ?in ruling that, within its spoliation analysis, Bull intentionally withheld the original documents from UPS? and further abused its discretion when it imposed the sanction of dismissal with prejudice

Nature of Case: Employment litigation

Electronic Data Involved: Copies of hardcopy doctor’s notes

Brocade Commc?ns Sys. v. A10 Networks, Inc., No. 10-CV-03428-LHK, 2012 WL 70428 (N.D. Cal. Jan. 9, 2012)

Dec 01 2012

Key Insight: Finding that plaintiff had shown good cause for requiring production of ?not reasonably accessible information,? the court granted plaintiff?s motion to inspect an individual defendant?s hard drive noting that such inspections had been allowed by other courts in cases of alleged misappropriation of trade secrets and further citing the relevance of the hard drive?s contents to the underlying claims, the inability to obtain the evidence elsewhere, and defendant?s inability to explain its statement that the hard drive in question had been ?recycled?; court held that plaintiff was ?not entitled to set the conditions of the inspection unilaterally nor select the person who will perform it? and ordered the parties to confer to agree on a protocol

Nature of Case: Misappropriation of trade secrets

Electronic Data Involved: Contents of hard drive

Custom Hardware Eng?g & Consulting, Inc. v. Dowell, No. 4:10CV00653 ERW, 2011 WL 10496 (E.D. Mo. Jan. 3, 2012)

Dec 01 2012

Key Insight: Relying heavily on Ameriwood Industries v. Liberman, No. 4:06CV524-DJS, 2006 WL 3825291 (E.D. Mo. Dec. 27, 2006), court ordered the discovery of ESI on defendant?s computers in accordance with three-step procedure: 1) imaging of hard drive by forensic expert, 2) recovery of ESI from that image, 3) defense counsel?s review and production of responsive non-privilege information; upon parties? disagreement regarding search terms to be utilized in step three, court rejected defendant?s arguments that plaintiff?s proposed terms would result in an ?unreasonable number of irrelevant results? and the production of privilege information and also rejected defendant?s proposed search terms as too narrow, where defendant proposed that only exact matches, including in capitalization and phrasing, be considered

Nature of Case: Copyright infringement, trade secret misappropria-tion, breach of contract, breach of fiduciary duty, and other related claims

Electronic Data Involved: Contents of hard drive

Archive - December 1, 2012