eDiscovery Import – Page 107 – Electronic Discovery Law

Wood v. Capital One Servs., LLC, No. 5:09-CV-1445, 2011 WL 2154279 (N.D.N.Y. Apr. 15, 2011)

Dec 01 2011

Key Insight: Court denied plaintiff?s motion to compel additional discovery, including ?sweeping searches of ESI using suggested search terms? where, following significant analysis of the rule of proportionality (26(b)(2)(C)), the court determined that the ?minimally relevant information to be developed through the discovery? was ?far outweighed by the burden? associated with it, but left open plaintiff?s option to bear the cost of the discovery himself

Nature of Case: Violations of Fair Debt Collection Practices Act

Electronic Data Involved: ESI

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

Zarwasch-Weiss v. SKF Economos USA, Inc., No. 1:10-cv1327, 1:10-cv-1548, 2011 WL 4628745 (N.D. Ohio Oct. 3, 2011)

Dec 01 2011

Key Insight: In three separate instances, court concluded plaintiff deliberately destroyed or failed to produce relevant electronic devices and documents; culpably contributed to the destruction of a relevant hard drive; and deliberately destroyed relevant financial information and ordered repayment of plaintiff?s attorneys? fees and costs related to the adjudication of their motions for sanctions and repayment of attorneys? fees and costs related to plaintiffs construction of evidence of relevant financial information, made much more difficult by defendant?s spoliation

Nature of Case: Breach of employment contract and related claims and cross claims related to theft and use of confidential information

Electronic Data Involved: ESI

Jacobeit v. Rich Township H.S. Dist. 227, No. 09 CV 1924, 2011 WL 2039588 (N.D. Ill. May 25, 2011)

Dec 01 2011

Key Insight: For defendant?s delayed production of certain relevant documents, including emails, court granted plaintiff permission to re-depose certain witnesses but denied his request for evidentiary and exclusionary sanctions; court found defendant had breached its duty to preserve when it destroyed an audio tape of school board meeting pursuant to the District?s normal retention policy but that culpability and prejudice were not significant and ordered that plaintiff be allowed to question a certain deponent regarding the meeting, but no other sanctions; court found defendants breached duty of preservation as to certain emails, but that prejudice was minimal, and declined to allow forensic examination of the District?s computers, but ordered that defendants bear the reasonable costs of plaintiff?s motion and reply

Nature of Case: wrongful termination

Electronic Data Involved: Emails, audio tape of board meeting

Zhi Chen v. District of Columbia, —F. Supp. 2d.—, 2011 WL 6879746 (D.D.C. Sept. 9, 2011)

Dec 01 2011

Key Insight: Where the general manager of the defendant Red Roof Inn claimed to have attempted to preserve video surveillance footage by asking for it to be copied but alleged that she later discovered that the footage was not copied and that the original footage had been automatically recorded over by that time, the court found, ?based on overwhelming evidence of Red Roof?s cavalier attitude toward its discovery obligations,? that defendant?s spoliation was grossly negligent and ordered an adverse inference and that defendant pay plaintiff?s reasonable attorneys? fees and costs associated with the preparation for the motion for sanctions

Nature of Case: Unlawful detention and related claims

Electronic Data Involved: 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)

Pensacola Firefighters? Relief Pension Fund Board of Trustees v. Merril Lynch Pierce Fenner & Smith, Inc., No. 3:09cv53/MCR/MD, 2011 WL 3512180 (N.D. Fla. July 7, 2011)

Dec 01 2011

Key Insight: Finding good cause, the court granted intervenors? motion for a protective order prohibiting plaintiff?s discovery of intervenors? privileged emails sent over defendant?s email servers (defendant was found to have waived its privilege as to such communications) where the intervenors were employees of defendant during the pendency of government investigations; had a joint defense agreement with defendant allowing communication for purposes of furthering their defense against the investigations; and held an objectively reasonable belief that their emails would remain confidential, in spite of defendant?s internal email policies warning that they were not, in light of defendant?s general counsel?s endorsement of and participation in such joint defense discussions

Electronic Data Involved: Intervenors’ privileged emails sent over defendant’s servers

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)

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