2012 – Page 8 – Electronic Discovery Law

Scott Process Sys., Inc. v. Mitchell, No. 2012CV00021, 2012 WL 6617363 (Ohio Ct. App. Dec. 17, 2012)

Dec 01 2012

Key Insight: Trial court abused discretion in granting motion to compel forensic imaging of third party?s devices where the record did not present a history of discovery violations or non-compliance sufficient to justify such intrusion and where the court?s order permitted ?unfettered forensic imaging? and contained none of the protections required to conduct forensic analysis (e.g., a neutral third-party examiner, production to counsel for privilege review prior to production to opposing counsel, etc.)

Nature of Case: Violation of non-compete

Electronic Data Involved: Forensic imaging

In re Estate of Tilimbo, No. 329/M-2007, 2012 WL 3604817 (N.Y. Sur. Ct. Aug. 22, 2012)

Dec 01 2012

Key Insight: Court granted access to third party attorney?s computers by a third party vendor for purpose of imaging and searching for documents related to the at-issue deed/transfer but imposed strict conditions, including time limits, and found that if the time limits could not be accommodated, then the burden of inspection was too great

Nature of Case: Action related to contested probate

Electronic Data Involved: computers/hard drives

Tampa Bay Water v. HDR Eng?g, Inc., No. 8:08-CV-2446-T-27TBM, 2012 Wl 5387830 (M.D. Fla. Nov. 2, 2012)

Dec 01 2012

Key Insight: Court noted that the Third Circuit has ?persuasively reasoned that ?only the conversion of native files to TIFF (the agreed-upon default format for production of ESI), and the scanning of documents to create digital duplicates are generally recognized as the taxable ?making copies of material,?? (Race Tires Am., Inc. v. Hoosier Racing Tire Corp, 674 F.3d 158 (3d Cir. 2012)) but held that in the present case, the ?precise scope of ? 1920(4) [was] immaterial? because of the parties? contract regarding costs and expenses and declined to deny recovery or reduce the amount sought

Nature of Case: Engineering malpractice

Electronic Data Involved: taxable costs

Reid v. Ingerman Smith, LLP, No. CV 2012-0307(ILG)(MDG), 2012 WL 6720752 (E.D.N.Y. Dec. 27, 2012)

Dec 01 2012

Key Insight: Finding that Plaintiffs? social media content could be relevant to her claims, court ordered photos, communications and posts since January 2008 be produced to Plaintiff?s counsel for review and that relevant portions be produced in accordance with the court?s specific instructions (e.g., photos posted by third parties may be subject to production if relevant, posts and communications by third parties are relevant to the extent they contain observations of the plaintiff, etc.)

Nature of Case: Sexual harassment

Electronic Data Involved: Social media (e.g., Facebook)

Country Vintner of North Carolina, LLC v. E&J Gallo Winery, Inc., No. 5:09-CV-326-BR, 2012 WL 3202677 (E.D.N.C. Aug. 3, 2012)

Dec 01 2012

Key Insight: Addressing Defendant?s efforts to recover costs related to ?technical, specialized services that were needed in order to ?collect, process, preserve, track, copy to digital format, and ultimately produce? the large amount of electronically stored information (?ESI?) that was utilized in the discovery process in this case,? the court adopted the Third Circuit?s reasoning in Race Tires America, Inc. v. Hoosier Racing Tire Corp and thus determined that ?a prevailing party may recover costs associated with copying or duplicating its files, but it may not receive reimbursement for any other ESI-related expenses?; in the present case the court found that ?the only tasks that involve copying are the conversion of native files to TIFF and PDF formats and the transfer of files onto CDs?

Nature of Case: Unfair and deceptive trade practices

Electronic Data Involved: ESI taxable costs

Davis v. Rouse, No. WDQ-08-cv-3106, 2012 WL 3059569 (D. Md. July 25, 2012)

Dec 01 2012

Key Insight: Where defendant produced more than 61,000 pages of emails but, when faced with Plaintiff?s motion for spoliation sanctions, could not explain how the search for ESI had been conducted (by a vendor) and subsequently produced only 11,411 pages of emails after being ordered to re-run the search, the court imposed sanctions of reasonable attorneys? fees and costs incurred by Plaintiff?s counsel to review the initial large production of emails containing many non-responsive documents and found counsel for plaintiff was also entitled to recover ?some proportional and reasonable? attorneys? fees and costs for litigating the underlying motion for sanctions which brought the overproduction to light

Nature of Case: Allegations of assault pursuant to 42 USC 1983

Electronic Data Involved: Emails

Tabon v. Univ. of Pennsylvania Health Sys. No. 10-cv-2781, 2012 WL 2953216 (E.D. Pa. July 20, 2012)

Dec 01 2012

Key Insight: Court declined to impose spoliation sanctions absent evidence of bad faith

Nature of Case: Employment Discrimination

Electronic Data Involved: Investigation file, original medical records, “comments section” of medical records from computer system

Shutterfly Inc. v. Foreverarts, Inc., No. CR 12-3671 SI, 2012 WL 2911887 (N.D. Cal. July 13, 2012)

Dec 01 2012

Key Insight: Court granted ex parte motion for temporary injunction prohibiting destruction of relevant ESI where plaintiff showed that it was likely to succeed on the merits of the case, that it would suffer irreparable harm absent an injunction if defendants were to destroy evidence, and that the prohibition against destruction of evidence would not burden defendants

Nature of Case: Copyright infringement

Electronic Data Involved: ESI

Blount v. Tate, No. 7:11CV00091, 2012 WL 4341053 (W.D. Va. Aug 24, 2012)

Dec 01 2012

Key Insight: Addressing plaintiff?s allegations of spoliation for defendants? loss of potentially relevant video footage, court declined to impose sanctions because it could not find that defendants had the necessary culpable mind reasoning that 1) defendants? production of other relevant video footage of the same event and another, similar event, contradicted plaintiff?s claims that defendants feared the video would cause them to lose the lawsuit, 2) that ?digital information can be destroyed or hopelessly misplaced in a data base at the touch of a button, without warning or recourse, and the prison?s system for preserving footage included three transition points when a technician?s inadvertent error could have destroyed or misplaced the? relevant footage, and 3) that the footage of the incident involving the plaintiff was not the only footage lost, suggesting that ?the event causing that loss was not intended to harm [Plaintiff?s] case?

Nature of Case: Eight Amendment violations, excessive force

Electronic Data Involved: Camcorder footage

Sikorsky Aircraft Corp. v. United States, 106 Fed. Cl. 571 (Fed. Cl. 2012)

Dec 01 2012

Key Insight: Court held that the deliberative process privilege was subject to a timeliness requirement and, where government asserted the possibility that documents used at deposition were subject to the deliberative process privileged at the end of a deposition but waited ?roughly six months? to definitively assert the privilege and another ?nearly four months? to communicate that assertion to Plaintiff, the court held the privilege had been waived

Nature of Case: Alleged violation of Cost Accounting Standards

Electronic Data Involved: String of emails

Archive - 2012