eDiscovery Import – Page 111 – Electronic Discovery Law

Tomlinson v. El Paso Corp., No. 04-cv-02686-WDM-MEH, 2011 WL 2297661 (D. Colo. June 9, 2011)

Dec 01 2011

Key Insight: Court denied request for taxation of costs related to conversion of documents into electronic format for discovery purposes where defendant failed to establish that the conversion costs were ?necessarily incurred in the case preparation?; court denied motion for taxation of costs related to creation of secure database in furtherance of responding to a legitimate discovery request where the court was not authorized to award such costs pursuant to the relevant statute and where it was unaware of authority allowing adjustments to the division of costs based on undue burden, an argument that was available ?during the discovery process?

Electronic Data Involved: Conversion of ESI

In re Clark, 345 S.W.3d 209 (Tex. Ct. App. 2011)

Dec 01 2011

Key Insight: Appellate court concluded that trial court?s order compelling plaintiff?s production of her personal computer and electronic storage devices did not provide sufficient protection for plaintiff?s potentially privileged documents where defendant?s forensic analyst would use search terms such as ?attorney? and ?lawyer? to identify potentially privileged information and, after expressing its confidence that the trial court would vacate its prior order and compel production in a manner that provided adequate protection of privileged information, conditionally granted plaintiff?s petition for mandamus indicating that ?[t]he writ of mandamus shall issue only in the event the trial court fails to act in accordance with this opinion?

Electronic Data Involved: Contents of personal computer, storage devices

In the Matter of an Application of the United State for an Order Authorizing the Release of Historical Cell-Site Information, No. `0-MC-897 (NGG), 2011 WL 3678934 (E.D.N.Y. Aug. 22, 2011)

Dec 01 2011

Key Insight: Court found reasonable expectation of privacy existed as to cumulative cell-site-location records such that they were protected by the Fourth Amendment and denied the Government?s motion pursuant to 18 U.S.C. ? 2703(c)(1) and (d) which sought two orders directing Verizon Wireless to disclose the cell-site-location records pursuant to the Stored Communications Act

Electronic Data Involved: Cell-site-location records

Benefitvision, Inc. v. Gentiva Health Servs., Inc., No. CV 09-473(DRH)(AKT), 2011 WL 3796324 (E.D.N.Y. May 23, 2011)

Dec 01 2011

Key Insight: Court ordered that non-privileged portions of email chains be produced with privileged portions redacted and properly logged; court addressed formatting and substantive issues with defendants? privilege log and ordered defendants to edit their log to remove the unnecessary data that was exported into the log from the documents database (e.g., dashes, arrows, etc.) to facilitate ease of use and to amend their descriptions to provide information sufficient to analyze the viability of the privilege claim

Electronic Data Involved: Emails

Suzlon Energy Ltd. v. Microsoft Corp.,671 F.3d 726(9th Cir. 2011)

Dec 01 2011

Key Insight: In this case, the Ninth Circuit affirmed the decision of the District Court that the Electronic Communications Privacy Act (ECPA) applies to foreign citizens and thus precluded Microsoft Corporation from producing a foreign citizen?s emails, which were stored on its server.

Electronic Data Involved: Emails stored on domestic server

Mgmt. Compensation Group Lee, Inc. v. Oklahoma State Univ., No. CIV-11-967-D, 2011 WL 5326262 (W.D. Okla. Nov. 3, 2011)

Dec 01 2011

Key Insight: Where non-party OSU represented that responding to a subpoena seeking 6571 documents would require an expenditure of $1,761.24 and 55 hours of in-house counsel?s time, court found the burden was not so undue as to require protection from compliance and, in so finding, noted OSU?s financial interest in the outcome of the litigation, OSU?s close ties to a party in the case, and the amount in controversy of the underlying litigation (many millions of dollars)

Electronic Data Involved: ESI

Aircraft Fueling Sys., Inc. v. Southwest Airlines Co., No. 08-CV-414-GKF-FHM, 2011 WL 4954250 (N.D. Okla. Oct. 18, 2011)

Dec 01 2011

Key Insight: Magistrate Judge denied motion for spoliation sanctions where plaintiff?s possession of some emails that arguably should have been produced by defendant but were not was ?somewhat probative? but fell short of establishing that other relevant emails were created by defendant and then destroyed; upheld on appeal

Electronic Data Involved: Email

First Tenn. Bank Nat?l Assoc. v. Republic Mortg. Ins. Co. & Republic Mortg. Ins. Co. of N.C., No. 2:10-cv-02513-JPM-cgc, 2011 WL 6130808 (W.D. Tenn. Dec. 8, 2011)

Dec 01 2011

Key Insight: Addressing the requisite showing to establish undue burden in responding to discovery, the court identified ?several overarching principles to be considered:? 1) that a party must provide ?competent proof demonstrating the burden faced;? 2) that ?the fact that a party maintains its document in a manner than makes access difficult is not an excuse for refusing to produce relevant documents;? and 3) that the court must consider whether the ?claimed hardship is unreasonable in light of the benefits to be secured,? and upon review of the evidence presented, ordered plaintiff to respond to defendants? requests for production

Electronic Data Involved: ESI

Cute v. ICC Capital Mgmt., Inc., No. 6:09-cv-1761-Orl-22DAB, 2011 WL 3222133 (M.D. Fla. July 22, 2011)

Dec 01 2011

Key Insight: Court disallowed taxation of costs ?paid to third party vendors for the processing and production of 11,447 pages of electronic documents? where ?a charge for a third party vendor of this size should have been the subject of specific good faith discussions between counsel before being incurred if ICC expected to tax such as part of costs at the conclusion to the litigation.?

Electronic Data Involved: ESI

E.E.O.C. v. DHL Express, No. 10 C 6139, 2011 WL 6825516 (N.D. Ill. Dec. 28, 2011)

Dec 01 2011

Key Insight: Where DHL produced ?28,000 spreadsheets worth of information? with an index containing metadata for each spreadsheet and any emails to which the spreadsheets were attached but where plaintiff nonetheless claimed that the burden of sifting through the spreadsheets was unduly onerous and sought to compel production of information to identify each spreadsheet and that defendant organize them according to request, the court noted its authority under Rule 34 to impose requirements ?different from those in the rule? and ordered defendant to identify which request each spreadsheet or group of spreadsheets was responsive to and to provide an explanation for spreadsheets not attached to an email

Electronic Data Involved: Spreadsheets

Author - eDiscovery Import