December 2012 – Page 7 – Electronic Discovery Law

Chura v. Delmar Gardens of Lenexa, Inc., No. 11-2090-CM-DJW, 2012 WL 940270 (D. Kan. Mar. 20, 2012)

Dec 01 2012

Key Insight: Court found that ?Defendant?s failure to produce any ESI, such as emails, attachments, exhibits, and word processing documents raise[d] justifiable concerns that Defendant may have 1) failed to preserve relevant evidence, or 2) failed to conduct a reasonable search for ESI responsive to Plaintiff?s discovery requests? and thus scheduled an evidentiary hearing and ordered Defendant to be prepared to present evidence on its preservation and search efforts (specific topics identified in court?s order)

Nature of Case: Employment discrimination

Electronic Data Involved: Miscellaneous ESI

Finnerty v. Stiefel Labs. Inc., 900 F. Supp. 2d 1317 (S.D. Fla. 2012)

Dec 01 2012

Key Insight: Court held that costs related to the creation of an electronic database solely for the benefit of Plaintiff?s counsel were not taxable as fees for exemplification

Nature of Case: Securities fraud

Electronic Data Involved: Taxable costs

Townsend v. Ohio Dept. of Transp., No. 11AP-672, 2012 WL 2467047 (Ohio Ct. App. June 28, 2012)

Dec 01 2012

Key Insight: Trial court abused its discretion in denying motion to conduct forensic analysis of defendant?s email and electronic data systems where defendant?s employee admitted to sending a highly relevant email that was never produced and where defendant failed to establish that production ?would incur undue burden or expense?; court?s analysis included consideration of whether deleted emails were discoverable (yes) and the need for a protocol to protect the producing party?s privilege, confidential information

Nature of Case: Personal injury resulting from auto accident

Electronic Data Involved: Email

Roxane Labs. Inc. v. Abbot Labs., No. 2:12-cv-312, 2013 WL 1829569 (S.D. Ohio Apr. 30, 2012)

Dec 01 2012

Key Insight: Where Plaintiff argued that production of the requested ESI would be unduly burdensome because of the lack of a ?centralized electronic document system? which would require it to ask ?hundreds of employees to search their electronic documents,? and would require ?significant effort to review and produce,? and where Plaintiff also argued that a 30(b)(6) deposition would be a less burdensome method of obtaining discovery, the court noted the lack of information provided to establish the burden alleged and reasoned that ?the mere fact that a party does not have a centralized electronic document system? does not establish undue burden and granted defendant?s motion to compel

Nature of Case: Patent litigation seeking declaratory judgment of invalidity and noninfringement

Electronic Data Involved: ESI

Phillip M. Adam & Assocs. V. Dell Computer Corp., No. 2012-1238, 2013 WL 1092719 (Fed. Cir. Mar. 18, 2012)

Dec 01 2012

Key Insight: Circuit court found that the district court erred in imposing an adverse inference for failure to preserve absent evidence of bad faith and thus reversed the district court?s imposition of an adverse inference sanction

Nature of Case: Patent Infringement

Electronic Data Involved: Source Code

United States v. Hamilton, 701 F.3d 404 (4th Cir. 2012)

Dec 01 2012

Key Insight: Use of work email waived marital privileged where, despite the lack of a computer usage policy at the time the emails were sent, the policy in effect at the time of the investigation stated that there was no expectation of privacy as to emails sent, received, accessed or STORED on the system and where the defendant ?did not take any steps to protect the emails in question, even after he was on notice of his employer?s policy permitting inspection of emails stored on the system at the employer?s discretion.?

Nature of Case: Criminal

Electronic Data Involved: Emails sent from workplace computer

Registe v. State, No. S12A1190, 2012 WL 5381248 (Ga. Nov. 5, 2012)

Dec 01 2012

Key Insight: Court found cell phone provider?s voluntary release of non-content records was supported by good faith belief that there was an ongoing emergency where the company received information from the police that its records could help to identify an ?at-large suspect of a double homicide committed within a day of the request and that the suspect presented a present and immediate danger? and thus the release of records complied with the Stored Communications Act and a motion to suppress was properly denied

Nature of Case: Double murder

Electronic Data Involved: Cell Phone records

Am. Builders & Contractors Supply Co., Inc. v. Roofers Mart, Inc., No. 1:11-CV-19 (CEJ), 2012 WL 2992627 (E.D. Mo. July 20, 2012)

Dec 01 2012

Key Insight: Where Defendant reinstalled the operating system on his personal laptop two days after his first deposition (where he was informed a request for ESI would be forthcoming) claiming that he did so to ensure that he did not possess Plaintiff?s proprietary information, and where Defendant had previously deleted the information on a relevant flash drive, the court found Defendant had acted intentionally and that Plaintiff had been prejudiced by the loss and ordered an adverse inference allowing, but not requiring, the jury to infer that the deleted information was unfavorable to Defendant and also ordered Defendant to pay Plaintiff?s attorneys? fees and costs connected with bringing the motion for sanctions; court acknowledged applicability of agency law in determining whether to impose sanctions against a party for spoliation by its employees but declined to do so in the present case

Nature of Case: Breach of non-compete, misappropriation of trade secrets

Electronic Data Involved: ESI

United States v. Kilpatrick, No. 10-20403, 2012 WL 3236727 (E.D. Mich. Aug. 7, 2012)

Dec 01 2012

Key Insight: Court granted motion in limine to establish authenticity of text messages sent on ?pager devices? citing 1) a sworn declaration of the pager services? custodian of records that the text messages were what they purported to be; 2) distinctive characteristics in the messages, including the displayed unique PIN number; 3) one defendant?s public admission that he and other employees communicated using the at-issue pagers; and 4) the ability of jurors to rely in comparisons with previously authenticated text messages

Nature of Case: Criminal

Electronic Data Involved: Text messages sent using “pager devices”

Yeung v. Dickman, No. 1 CA-CV 11-0735 (Ariz. Ct. App. Dec. 18, 2012)

Dec 01 2012

Key Insight: Noting that the ?offending party?s degree of fault and the corresponding prejudice suffered by the non-offending party? were the ?most important? factors for consideration when determining whether to impose sanctions, court denied request for spoliation sanctions where the information Plaintiff alleged was spoliated was not relevant to the issues in the case, where Plaintiff merely speculated that the lost information would support his case, and where Plaintiff could have obtained the information from third parties but chose not to

Nature of Case: Defamation

Electronic Data Involved: Hard drives containing certain allegedly relevant communications

Archive - December 2012