December 2013 – Page 17 – Electronic Discovery Law

In re High-Tech Employee Antitrust Litig., No. 11-CV-2509-LHK-PSG, 2013 WL 772668 (N.D. Cal. Feb. 28, 2013)

Dec 01 2013

Key Insight: Applying relevant factors identified in In re Asia Global Crossing Ltd., 322 B.R. 247 (S.D.N.Y. 2005), court concluded that consultant?s use of workplace email did not waive privilege where, although the factors were evenly split, there was no evidence that the employee actually monitored employees? emails and because of the ?importance of the attorney-client privilege?

Nature of Case: Plaintiffs claim defendants colluded to “avoid poaching each other’s employees and to stabilize their compensation packages.”

Electronic Data Involved: Emails

E.E.O.C. v. Original Honeybaked Ham Co. of Georgia, Inc., No. 11-cv-02560-MSK-MEH, 2013 WL 753480 (D. Colo. Feb. 27, 2013)

Dec 01 2013

Key Insight: Following up on its November 2012 opinion (2012 WL 5430974), the court adopted the EEOC?s proposed search terms (with certain additions proposed by Defendant) and amended its November order to hold that the EEOC would bear the initial costs of the Special Master appointed for the purpose of conducting the relevant searches of Plaintiffs? email, social networks, and cell phones and could seek reimbursement from the Defendant by motion and argument at an appropriate time (court had initially ordered that the parties would bear the cost equally

Nature of Case: Sexual Harassment, retaliation

Electronic Data Involved: Social media, text messages, email

Digital Reg of Texas, LLC v. Adobe Sys. Inc., No. 12-01971-CW-(KAW), 2013 WL 633406 (N.D. Cal. Feb. 20, 2013)

Dec 01 2013

Key Insight: ?In light of the availability of source code analyzer tools and the extraordinary burden that a compiler would impose on [Defendant], the court denie[d] [Plaintiff?s] request for a compiler for source code review?; court also declined to compel defendant?s production of printouts of 14 complete files (of source code) and ordered the parties to meet to determine which limited portions of the source code would be produced in hard copy and to arrange for [Plaintiff?s] experts to inspect the complete file ?to determine the limited portions of the source code needed, if necessary.?

Nature of Case: Patent Infringement

Electronic Data Involved: Source code, compiler software

United States v Finazzo, No. 10-CR-457 (RRM)(RML), 2013 WL 619572 (E.D.N.Y. Feb. 19, 2013)

Dec 01 2013

Key Insight: Court found privilege was waived as to an allegedly privileged email received at, and then forwarded to another email address from, an employer-owned email address

Nature of Case: Indictment arising from conspiracy to receive kickbacks from clothing supplier

Electronic Data Involved: Email

Ameranth v. Pizza Hut, Inc., 2013 WL 636936 (S.D. Cal. Feb. 20, 2013)

Dec 01 2013

Key Insight: Court declined to compel production of ?the entire source code tree for each accused product? where it found that Plaintiff had not shown the need to fully understand all operations as opposed to ?only those aspects accused in the infringement claims? and where the alleged burden of production was great; court ordered that production of relevant portions of source code must include original files names and be in native format

Nature of Case: Patent Infringement

Electronic Data Involved: Source Code

United States ex rel King v. DSE Inc., No. 8:08-CV-2416-T-23EAJ, 2013 WL 610531 (M.D. Fla. Jan. 17, 2013)

Dec 01 2013

Key Insight: Where Relator withheld production of video diaries admittedly containing information damaging to his case and subsequently claimed the video was lost as the result of a burglary, court found overwhelming evidence of bad faith and that defendants had been prejudiced and thus dismissed Relator?s claims

Nature of Case: Violations of False Claims Act

Electronic Data Involved: Video diaries recorded by Relator

United States ex rel King v. Solvay S.A., No. H-06-2662, 2013 WL 820498 (S.D. Tex. Mar. 5, 2013)

Dec 01 2013

Key Insight: Court granted motion for protective order to limit unduly burdensome discovery and preservation demands where Defendant established the significant burden associated with preserving the multiple repositories of potentially relevant information covering 89 potential custodians, including thousands of back-up tapes, and where the court found that the allegations of the complaint did not justify the broad timeframe for discovery sought

Nature of Case: Qui Tam action alleging violations of anti-kickback statute and retaliation against Relators

Electronic Data Involved: ESI

Slovin v. Target Corp., No. 12 CV 863(HB), 2013 WL 840865 (S.D.N.Y. Mar. 7, 2013)

Dec 01 2013

Key Insight: Court found Target was at least grossly negligent for failing to preserve all portions of relevant surveillance footage (capturing Plaintiff?s fall and the surrounding circumstances) and thus imposed an adverse inference and monetary sanctions, but declined to strike Target?s answer or preclude use of the at-issue video excerpts and photographs

Nature of Case: Personal injury/slip and fall

Electronic Data Involved: Surveillance footage

E.I. Du Pont De Nemours & Co. v. Kolon Indus., Inc., No. 3:09-cv58, 2013 WL 458532 (E.D. Va. Feb. 6, 2013)

Dec 01 2013

Key Insight: For spoliation addressed in E.I. Du Pont De Nemours & Co. v. Kolon Indus., Inc., No. 3:09-cv58, 2011 WL 2966862 (E.D. Va. July 21, 2011), court awarded DuPont attorneys? fees in the amount of $2,428,733.90 and costs in the amount of $2,068,313.60; costs/expenses included those paid to three outside vendors, including for forensic analysis services and for providing contract attorneys to review and analyze documents

Nature of Case: Misappropriation of trade secrets, theft of business information, conspiracy, etc.

Electronic Data Involved: ESI

Braun v. Toyota Motor Sales, U.S.A., Inc., No. B234212, 2013 WL 520030 (Cal. Ct. App. Feb. 13, 2013)

Dec 01 2013

Key Insight: Where plaintiff failed to substantiate his privacy objections and provided the court with no information to weigh against defendant?s stated need for discovery, the trial court did not abuse its discretion by ordering the production of plaintiff?s home computer, which contained relevant photographic evidence; trial court did abuse its discretion when it ordered terminating sanctions for plaintiff?s intentional deletion of allegedly private information before producing his computer for inspection where Toyota offered only speculation as justification for such a serious sanction (e.g., ??we will never know? what was destroyed?) and where plaintiff did produce more than 13,000 photographs for inspection; case was remanded for consideration of serious sanctions short of terminating plaintiff?s case

Nature of Case: Sexual harassment, wrongful termination

Electronic Data Involved: Selected contents of home computer, photographs

Archive - December 2013