eDiscovery Import – Page 108 – Electronic Discovery Law

Pink Lotus Entm?t, LLC v. Does 1-46, No. C-11-002263 HRI, 2011 WL 2470986 (N.D. Cal. June 21, 2011)

Dec 01 2011

Key Insight: After consideration of the four relevant factors to determine whether there is good cause to allow expedited discovery and upon a determination that plaintiff had met its burden, court granted motion to allow expedited discovery for the limited purpose of obtaining indentifying information from alleged infringers? ISPs

Nature of Case: Copyright Infringement

Electronic Data Involved: Identifying information from internet service providers

Jimena v. UBS AG Bank, Inc., No. 1:07-cv-00367 OWW SKO, 2011 WL 2551413 (E.D. Cal. June 27, 2011)

Dec 01 2011

Key Insight: Court found plaintiff failed to properly authenticate emails allegedly sent to him by Clive Standish pursuant to either Evidence Rule 901(b)(1), permitting authentication through the testimony of a witness with personal knowledge, or Rule 901(b)(4) which allows authentication by appearance, contents, substance, internal patterns, or other distinctive characteristics taken in conjunction with circumstances and, absent admissible evidence to create a triable issue of material fact, granted defendant?s motion for summary judgment

Nature of Case: Fraud

Electronic Data Involved: Emails

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

150 Nassau Assoc. LLC v. RC Dolner LLC, No. 601879/04, 2011 WL 579061 (N.Y. Sup. Ct. Feb. 14, 2011)

Dec 01 2011

Key Insight: Court denied motion to compel production of database data in native format where the same information had been produced in PDF format, where there were no accusations of inconsistencies in the information provided, where neither party addressed the costs of the requested native production and where the native data sought could not be provided without also disclosing irrelevant confidential information

Nature of Case: Breach of contract

Electronic Data Involved: Database

Morris v Scenera Research LLC, No. 09 CVS 19678, 2011 WL 3808544 (N.C. Super. Ct. Aug. 26, 2011)

Dec 01 2011

Key Insight: Court upheld clawback agreement between the parties which held that inadvertent production would not result in waiver; where parties entered into 26(f) agreement regarding what metadata need be produced but where plaintiff moved to compel production of additional fields because those provided did not allow him to search effectively or identify the source of particular documents, the court entered into an extensive analysis of the ?form? and ?organization? requirements in Rule 34 and withheld ruling until defendant could provide evidence regarding the burden of providing an index that could allow identification of the source of each document

Nature of Case: State employment claims

Electronic Data Involved: ESI, metadata

Millsaps v. Aluminum Co. of Amer., No. 10-84924, 2011 WL 6019220 (E.D. Pa. Dec. 2, 2011)

Dec 01 2011

Key Insight: Where, in a separate but similar case involving the same plaintiffs? counsel and defendant, defendant was previously prepared to produce the scanned contents of approximately 1300 boxes when the case settled, and where plaintiff in the present case (with the same plaintiffs? counsel) sought production of those documents in his case, and where the disagreement focused on which party should be allowed to search the documents for relevant information (because defendant felt that plaintiff?s search would identify all documents as relevant and plaintiff felt that defendant would not identify relevant documents that were not obviously relevant but nonetheless important), the court ordered the parties to confer to develop search terms and agreed, if necessary, to consider up to 100 disputed terms submitted by the parties

Nature of Case: Wrongful death, asbestos

Electronic Data Involved: Scanned hard copy

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)

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

Bower v. Bower, No. 10-10405-NG, 2011 WL 3702086 (D. Mass. Apr. 5, 2011)

Dec 01 2011

Key Insight: Court denied motion to compel Yahoo! and Google to produce emails in violation of Stored Communications Act and declined to rely upon defendant?s ?status as a fugitive? to find that she was deemed to have given consent or to issue an order requiring consent which, if defied, would allow the implication that consent had been given where the court reasoned that ?there is nothing in [defendant?s] actions from which this court can imply an intent to consent to the disclosure of her information

Nature of Case: Child abduction

Electronic Data Involved: Web-based email

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

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