eDiscovery Import – Page 105 – Electronic Discovery Law

Cacace v. Meyer Mktg. (Macau Commercial Offshore) Co., No. 06 Civ. 2938(KMK)(GAY), 2011 WL 1833338 (S.D.N.Y. May 12, 2011)

Dec 01 2011

Key Insight: Court found duty to preserve arose upon defendant?s consultation with counsel regarding possible infringement on plaintiff?s patent but abated upon the parties? successful negotiation of licensing agreement; court found that defendant had no control and thus no obligation to preserve certain documents from an employee of a Hong-Kong based affiliate; regarding an email folder accidentally deleted following inadvertent ?exposure? to automated purge function, court declined to find the loss was a result of negligence and found that plaintiff failed to establish the relevance of information lost and declined to impose sanctions

Nature of Case: Patent infringement

Electronic Data Involved: ESI, emails

E.E.O.C. v. Dillon Companies, Inc., —F. Supp. 2d—, 2011 WL 5834648 (D. Colo. Nov. 21, 2011)

Dec 01 2011

Key Insight: For defendant?s failure to preserve highly relevant surveillance footage in bad faith (as evidenced by the loss of three copies of the tape and the deliberate recording over of the master tape) which resulted in prejudice to the plaintiff, the court ordered an adverse inference instruction that the information would have been unfavorable to defendant and precluded defendant from offering the testimony of witnesses who viewed the footage prior to its loss as to what the footage depicted

Nature of Case: Employment discrimination/violation of Americans with Disabilities Act

Electronic Data Involved: Original and three copies of relevant surveillance footage

In re Lazaridis, 865 F. Supp. 2d 521 (D.N.J. 2011)

Dec 01 2011

Key Insight: Court granted motion to quash subpoena issued pursuant to 28 U.S.C. ? 1782 upon finding the subpoena was unduly burdensome because of the time and/or cost that would be required to retrieve the information requested from the non-profit organization?s server, particularly in light of the availability of the information from the organization?s publically available website, and where the request implicated the First Amendment rights of the organization?s members who were subject to a privacy policy that assured them that their private information would be protected

Nature of Case: Foreign prosecution involving claims of libel and slander

Electronic Data Involved: ESI, messages from online forum(s)(stored in Structured Query Language)

United States v. Hock Chee Koo, No. 09-321-(2,3)-KI, 2011 WL 777965 (D. Or. Mar. 1, 2011)

Dec 01 2011

Key Insight: Where a computer analyst made a backup image of certain files on defendant?s computer and returned the laptop to defendant?s employer, who proceeded to look through the files, etc. before supplying the backup image and the laptop to the FBI, and where the FBI then made an image of the backup image and an image of the entire laptop, the court held that the image of the backup image, reflecting some of the contents of the laptop before the employer looked through the laptop?s files, could be admitted as proof of what the FBI obtained from the employer AND as evidence of some of the contents of the laptop (the backup image did not include the entire contents of the laptop); court held that FBI?s image of the whole laptop (taken after the employer had looked through the files, etc. and thus changed metadata, etc.) could be admitted as evidence of what was obtained by the FBI from the employer, but cold not be offered to prove the contents of the laptop while in defendant?s possession

Nature of Case: Theft of trade secrets

Electronic Data Involved: Backup image and image of contents of laptop

Atlas Resources, Inc. v. Liberty Mut. Ins. Co., No. CIV 09-1113 WJ/KBM, 2011 WL 10563364 (D.N.M. Sept. 8, 2011)

Dec 01 2011

Key Insight: For Defendant?s and counsel?s discovery violations, including delayed production of relevant information, wrongful certification that discovery was complete, producing a 500-page document 35 times, and failing to conduct adequate searches of responsive information, court evaluated the Enrenhaus factors and imposed monetary sanctions to be paid by both Defendant and its counsel; court?s analysis was particularly critical of counsel who the court concluded had ?abdicated its responsibility to exercise oversight of the discovery process? and who the court found to be subject to sanctions pursuant to both Rule 37 and 26

Nature of Case: Claims arising from contract for providing worker?s compensation insurance and claims administration

Electronic Data Involved: ESI

Stambler v. Amazon.com, No. 2:09-CV-310 (DF), 2011 WL 10538668 (E.D. Tex. May 23, 2011)

Dec 01 2011

Key Insight: Where parties agreed on search terms to identify responsive materials and defendants (the producing parties) later argued that the terms had produced overly-burdensome results, court held that defendants had the burden of ?justifying non-production or reduced production? because they had agreed to the terms and that they had failed to ?justify protection under Rule 26(b)(2)(C)(iii)? but, acknowledging the expected costs of review and production, indicated that defendants could choose to produce documents without reviewing the results in light of the ability to identify privilege using key words and the parties? claw back agreement in their protective order; recognizing the potential burden to plaintiffs if defendants chose to produce documents without review, the court indicated the parties could confer to revise search terms if they so chose

Nature of Case: Patent infringement

Electronic Data Involved: Emails

E.I. Du Pont De Nemours & Co. v. Kolon Indus., Inc., No. 3 :09cv58, 2011 WL 1597528 (E.D. Va. Apr. 27, 2011)

Dec 01 2011

Key Insight: Court denied motion for spoliation sanctions for plaintiff?s alleged deletion of relevant ESI upon finding that because plaintiff would not have known of the relevance of information in the identified custodians? custody at the time ESI was lost, there was no duty to preserve and thus no spoliation; as to ESI alleged to have been deleted while a duty to preserve existed, the court denied sanctions absent evidence of relevance or that defendant was prejudiced by the alleged loss

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

Electronic Data Involved: ESI, emails

Int?l Med. Group, Inc. v. Walker, No. 1:08-cv-923-JMS-TAB, 2011 WL 1752101 (S.D. Ind. May 9, 2011)

Dec 01 2011

Key Insight: Where relevant evidence found on defendants? hard drive ?challenge[d]? defendants? prior assertions that they had not retained copies of certain communications and defendant Walker?s ?self characterization as a peripheral observer?, the court concluded that Plaintiff had made a prima facie showing of fraud and that defendants therefore waived their attorney-client privilege as to communications with counsel regarding: ?preservation, destruction, or location of documents or discussion of discovery obligations?

Nature of Case: Conspiracy to defame and tortuously interfere with business relationships

Electronic Data Involved: ESI

Commonwealth v. Koch, 39 A.3d 996 (Pa. Super. Ct. 2011)

Dec 01 2011

Key Insight: Conviction reversed and case remanded where trial court abused its discretion by admitting text messages found on the defendant?s cell phone without providing any evidence to establish that the defendant was the author of the at-issue messages, particularly where several messages referred to the defendant in the third person and ?and thus, were clearly not written by her?; court also found the text messages constituted inadmissible hearsay

Nature of Case: Drug conviction

Electronic Data Involved: Text messages

People v. Oyerinde, No. 298199, 2011 WL 5964613 (Mich. Ct. App. Nov. 29, 2011)

Dec 01 2011

Key Insight: Trial court properly determined that Facebook messages from Defendant to his victim were admissible non-hearsay as party admissions pursuant to MRE 801(d)(2); trial court (in bench trial) indicated that it reviewed Facebook messages from victim to defendant and from victim to her sister to ?provide context? for Defendant and victim?s relationship and, on appeal, appellate court reasoned that ?[r]egardless whether some of the messages should not have been admitted under MRE 803(3), the trial court did not rely on the messages to prove that any events actually occurred; judgment of the trial court was affirmed

Nature of Case: Criminal: First-degree felony murder and carjacking

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

Author - eDiscovery Import