eDiscovery Import – Page 123 – Electronic Discovery Law

In re Air Cargo Shipping Servs. Antitrust Litig., 2010 WL 2976220 (E.D.N.Y. July 23, 2010)

Dec 01 2010

Key Insight: Court granted motion to compel production of ESI from South Africa, despite the country?s strict blocking statute, where the information was relevant, the request was sufficiently narrow and not shown to be burdensome, the US interest in enforcing its antitrust laws trumped South Africa?s enforcement of their blocking statute, there was no evidence of hardship to the producing party absent an unsubstantiated threat of sanctions, and where there was no alternative source from which to obtain the information

Nature of Case: Antitrust litigation

Electronic Data Involved: ESI in foreign jurisdiction

Trickey v. Kaman Indus. Techs. Corp., 2010 WL 5067421 (E.D. Mo. Dec. 6, 2010)

Dec 01 2010

Key Insight: Where, in response to discovery requests, defendant?s employees manually selected and preserved all potentially relevant documents that were on their computers, in the live database, or archived but where defendant did not create a mirror image of its email server or other data, the court indicated its ?concern? but ?[could not] say that [defendant?s] efforts under the circumstances were sanctionable?, and noted that ?critically, plaintiff has not made spoliation claims? and that defendant had already attempted to remedy plaintiff?s concerns by hiring a forensic expert to examine its data (including deleted data) for relevant information

Nature of Case: Employment discrimination

Electronic Data Involved: Emails, ESI

Gutman v. Klein, 2010 WL 4975554 (E.D.N.Y. Aug. 29, 2010)

Dec 01 2010

Key Insight: Court denied defendants? motion for sanctions for allegedly ?producing a non-business-related hard drive in place of a hard drive they were supposed to produce? where defendants delayed too long in bringing the motion by waiting more than four years after the events in question and nearly two years after the court invited such a motion; addressing briefly the merits of defendants? claims, the court found the argument to be ?flawed? where defendants mischaracterized the court?s order for production and plaintiff?s testimony regarding the computers in his office

Nature of Case: Accusations of fraud

Electronic Data Involved: Hard drives

Living Scriptures, Inc. v. Doe(s), 2010 WL 4687679 (D. Utah. Nov. 10, 2010)

Dec 01 2010

Key Insight: Court granted motion for expedited discovery to discover the identity of the alleged copyright infringers for the purposes of commencing litigation and for seeking a preliminary injunction noting that courts have ?routinely? allowed such discovery and that the information sought was ?transitory in nature? and necessary to initiate the action

Nature of Case: Copyright infringement

Electronic Data Involved: Does’ identities

Union Pump Co. v. Centrifugal Tech., Inc., 2010 WL 186616 (5th Cir. Dec. 16, 2010)

Dec 01 2010

Key Insight: Noting the need to wield a court?s inherent power to impose sanctions with ?great restraint?, the appellate court found the trial court did not abuse its discretion in declining to impose attorney?s fees as an additional sanction for defendant?s spoliation where the court provided an adverse inference instruction to the jury and where the trial court found the jury?s verdict provided ?adequate compensation? for plaintiff?s claims; appellate court noted plaintiff?s failure to renew its request for fees based on spoliation following the jury?s verdict

Nature of Case: Misappropriation of trade secrets, unfair competition

Electronic Data Involved: ESI, hard drives, backup tapes

EEOC v. Supervalu, Inc., 2010 WL 5071196 (N.D. Ill. Dec. 7, 2010)

Dec 01 2010

Key Insight: Court denied plaintiff?s motion to compel production of portions of defendants? human resources database where defendants showed that it would take at least a week, perhaps longer, to write the code necessary to pull the requested data and where the information sought required ?significant analysis? and relied on an unproven assumption such that plaintiff did not establish that ?the purported relevance or benefit of the information outweigh[ed] the burden or expense of producing it?

Nature of Case: Violations of ADA

Electronic Data Involved: Portion of Human Resources database

Revello v. Med-Data Infotech USA, Inc., 2010 WL 4967968 (Fla. Dist. Ct. App. Dec. 8, 2010)

Dec 01 2010

Key Insight: Court quashed order directing production of defendant?s source code where, despite claiming misappropriation of its trade secret, plaintiff declined to produce its own source code and thus ?neither identified with reasonable particularity the nature of its claimed trade secret nor established that it exists? and was therefore not entitled to the source code it sought from the defendant

Nature of Case: Misappropriation of trade secret

Electronic Data Involved: Source code

Goshawk Dedicated, Ltd. v. Amer. Viatical Servs., LLC, 2010 WL 5250360 (N.D. Ga. Oct. 4, 2010)

Dec 01 2010

Key Insight: Clarifying the nature of its order regarding costs, court stated that its prior order requiring plaintiff to deposit funds into the court registry sufficient to cover the third party?s anticipated costs of producing ESI specifically excluded attorney?s fees but did not preclude recovery of them, and ordered compliance with its prior order

Nature of Case: Fraud and negligence claims

Electronic Data Involved: ESI

Cruz v. G-Town Partners, L.P., 2010 WL 5297161 (Del. Super. Ct. Dec 3, 2010)

Dec 01 2010

Key Insight: Court denied motion for adverse inference for defendant?s ?inadequately explained, perhaps even suspect? inability to produce photographs of the alleged accident scene (the bathroom of plaintiff?s apartment) where plaintiff ?did not exhaust every available mechanism to obtain these photographs? (by failing to obtain a forensic analysis of the computers alleged to have stored the photos, for example) and where the facts underlying the absence of the photos were ?sufficiently equivocal and incomplete to defeat plaintiff?s claim of entitlement to an adverse inference? and where the probative value of the photos was ?speculative at best?; court?s denial of adverse inference resulted in denial of application of Res Ipsa Loquitur and thus the entry of summary judgment in favor of defendants

Nature of Case: Personal Injury

Electronic Data Involved: Photographs stored electronically and sent via email

VocalSpace, LLC v. Lorenso, 2010 WL 5247451 (E.D. Tex. Dec. 16, 2010)

Dec 01 2010

Key Insight: Where, despite a clear duty to preserve, defendant transferred relevant data to a new server and then erased and sold the old servers, and where, as a result, ?log files? were lost, the court found that the evidence ?falls short? of evidencing bad faith and declined to impose ?death penalty sanctions? but ordered that the admission of evidence of defendants? preservation efforts and evidence destruction was appropriate and ordered that evidence of the circumstances surrounding the destruction of the servers would be allowed at trial

Nature of Case: Copyright infringement, misappropriation of trade secrets, breach of fiduciary duty, etc.

Electronic Data Involved: ESI, “log files”

Author - eDiscovery Import