December 2012 – Page 18 – Electronic Discovery Law

Commercial Law Corp., P.C. v. Fed. Deposit Ins. Corp., No. 10-13275, 2012 WL 1230554 (E.D. Mich. Apr. 12, 2012)

Dec 01 2012

Key Insight: Court overruled plaintiff?s objections to an order allowing mirror imaging of its computers where there was sufficient evidence of the likelihood of fraud to warrant such a search, where the request for inspection was timely (and need not have been asked for in the first discovery request because information evidencing possible fraud did not come to light until later), and where the protocol devised adequately protected potentially privileged information

Nature of Case: Action for recovery of attorneys fees

Electronic Data Involved: Forensic inspection of computers

Pursuit Partners, LLC v. UBS AG, No. FSTX08CV084013452, 2012 WL 1624242 (Conn. Sup. Ct. Apr. 3, 2012)

Dec 01 2012

Key Insight: Court found plaintiff had violated a court order compelling production of responsive materials, as evidenced by the production of additional responsive documents from other witnesses and by plaintiff?s agent?s inability to relate his process for identifying and collecting responsive information, but declined to order the case dismissed and instead ordered plaintiff to ?once again respond to each discovery request? and outlined what information should be tracked with regard to those efforts

Nature of Case: Claims concerning the purchase of several collateralized debt obligations (CDO’S) by the plaintiffs which resulted in a substantial loss as a result of the credit ratings downgrades in the market

Electronic Data Involved: ESI

Bourne v. Arruda, No. 10-cv-393-LM, 2012 WL 1570831 (D.N.H. May 3, 2012)

Dec 01 2012

Key Insight: Court denied plaintiff?s motion for access to defendants? computers and other electronic storage devices (at defendants? expense) where plaintiff?s allegations of incomplete discovery and spoliation were merely speculative and were insufficient to justify his request

Nature of Case: Defamation

Electronic Data Involved: Computers, electronic storage devices

Special Markets Ins. Consultants, Inc. v. Lynch, No. 11 C 9181, 2012 WL 1565348 (N.D. Ill. May 2, 2012)

Dec 01 2012

Key Insight: Court granted motion to quash third party subpoenas seeking production of defendants? email records, emails, text messages, and other related information (from Yahoo and Verizon) where the court found defendants did have standing to challenge the subpoenas and where the court further found that the subpoenas violated the Stored Communications Act, which does not allow for the production of such information pursuant to civil subpoena

Nature of Case: Breach of employment contract

Electronic Data Involved: Email records and messages; phone records and text messages

Louisiana Worker?s Compensation Corp. v. Quality Exterior Servs. LLC, —So.3d—, 2012 WL 1668027 (La. Ct. App. May 2, 2012)

Dec 01 2012

Key Insight: Court granted writ of certiorari, reversed the ruling of the trial court, and granted defendant?s motion to compel production in native format where plaintiff failed to establish that the discovery sought was ?not reasonably accessible because of undue burden or cost? pursuant to the Louisiana Code of Civil Procedure

Nature of Case: Claims for unpaid portion of insurance premuim

Electronic Data Involved: ESI in native format

United States v. Walker, No. 3:06-CV-16 (CDL), 2012 WL 1672992 (M.D. Ga. May 14, 2012)

Dec 01 2012

Key Insight: Addressing recovery of costs, court indicated applicability of 28 U.S.C. ? 1919 ?which allows recovery of ?just costs??because the case had been dismissed for lack of subject matter jurisdiction, but noted that 28 U.S.C. ? 1920 could provide assistance in determining what costs are ?just? and approved costs for copying, including through scanning and Optical Character Recognition, but declined to approve costs related to ?processing? the documents so that defendants? counsel could review them in electronic form

Nature of Case: False Claims Act

Electronic Data Involved: Costs related to Electronic Discovery

Apple, Inc. v. Samsung Co., Ltd., No. C 11-1846 LHK (PSG), 2012 WL 1595784 (N.D. Cal. May 4, 2012)

Dec 01 2012

Key Insight: For defendant?s significant delay in producing source code for ?design-around? products despite a court order compelling such production and because the delay resulted in prejudice to the plaintiff because of its inability to follow up (because the source code was produced after the close of discovery), the court imposed substantial sanctions and ordered that defendant would be precluded from offering ?design-around? evidence for three patents and from arguing that the design-arounds were in any way distinct from version of the code produced in accordance with the court?s order: ?Samsung must instead rely on versions of the code that were produced on or before December 31, 2011.?

Nature of Case: Patent Infringement

Electronic Data Involved: Source Code

In the Matter of OSF Healthcare Sys., No. 9349, 2012 WL 1561035 (Mar. 27, 2012)

Dec 01 2012

Key Insight: Addressing when litigation was reasonably anticipated by Complaint Counsel (responsible for issuing the relevant Civil Investigative Demand), the court reasoned that anticipation of litigation was not triggered upon issuance of a ?second request? in connection with an ongoing investigation where the results of such investigations must first be analyzed to determine if an enforcement action is warranted and where the majority of investigations do not result in litigation; court denied respondent?s Motion to Compel

Nature of Case: FTC Civil Investigation

Electronic Data Involved: Relevant “communications”

In re Jordan, —S.W.3d—, 2012 WL 1098275 (Tex. Ct. App. Apr. 3, 2012)

Dec 01 2012

Key Insight: Court conditionally granted writ of mandamus upon finding that In re Weekley Homes was controlling and that the lower court had abused its discretion by not following the procedures elaborated therein, including that the party who was granted access to relator?s computer (through a forensic examiner) failed to explain its search methodology or its expert’s credentials and that there was no evidence that the court considered a protective order

Nature of Case: Hostile work environment

Electronic Data Involved: Personal computer

Glazer v. Fireman?s Fund Ins. Co., No. 11 Civ. 4374(PGG)(FM), 2012 WL 1197167 (S.D.N.Y. Apr. 5, 2012)

Dec 01 2012

Key Insight: Where third-party provider of online psychic services represented that plaintiff would be able to access most of the information requested by defendant if she re-opened her account, the court ordered that plaintiff do so, and promptly produce all responsive information; as to information not available to plaintiff, court indicated that defendant may be provided opportunity to require plaintiff to provide authorization to third party to release such information

Nature of Case: Employment Discrimination

Electronic Data Involved: Records related to sessions with online psychic

Archive - December 2012