eDiscovery Import – Page 194 – Electronic Discovery Law

NSB U.S. Sales, Inc. v. Brill, 2007 WL 258181 (S.D.N.Y. Jan. 26, 2007)

Dec 01 2007

Key Insight: Defendant?s failure to comply with magistrate?s orders compelling production of email and other responsive documents warranted monetary sanctions as follows: (1) $26,667 for legal fees incurred by plaintiff as result of defendant?s discovery misconduct; (2) separate fine of $25,000 for defendant’s contempt of court orders; and (3) separate fine of $5,000 on defense counsel?s law firm for defense counsel?s role in his client?s actions

Nature of Case: Breach of licensing agreement

Electronic Data Involved: Email and other responsive documents

Rodgers v. Lowe’s Home Centers, Inc., 2007 WL 257714 (N.D. Ill. Jan. 30, 2007)

Dec 01 2007

Key Insight: Court denied plaintiff?s motion for ultimate sanction of dismissal based upon defendant’s loss of videotape, since there was no proof of willful or bad faith destruction and marginal relevance of missing videotape was such that plaintiff’s ability to prosecute the case was not meaningfully compromised

Nature of Case: Employment discrimination

Electronic Data Involved: Surveillance videotape showing unpleasant encounter between plaintiff and customer which preceded plaintiff’s termination

Hendricks v. Smartvideo Techs., Inc., 2007 WL 220160 (M.D. Fla. Jan. 26, 2007)

Dec 01 2007

Key Insight: Court denied defense motion for dismissal based on plaintiff’s failure to preserve laptop’s hard drive, since there was no evidence that plaintiff’s conduct was intentional or in bad faith — plaintiff explained that hard drive was replaced after laptop crashed and before defendant’s discovery requests were received

Nature of Case: Breach of contract

Electronic Data Involved: Laptop hard drive

G.D. v. Monarch Plastic Surgery, P.A., 2007 WL 201154 (D. Kan. Jan. 24, 2007)

Dec 01 2007

Key Insight: Court granted motion to compel defendants to produce the subject computer for inspection, appointed an expert to conduct the examination whose fees would be shared by the parties, and set out two distinct procedures for production of the computer ? one for reviewing the computer?s hardware, software, and operating system and one for reviewing information stored on the computer

Nature of Case: Plaintiffs claimed defendants wrongfully disclosed plaintiffs’ confidential medical information stored on a computer hard drive by placing the computer on the curb for trash disposal

Electronic Data Involved: Computer hard drive of subject computer

Sharma v. Vinmar Int’l, Ltd., 2007 WL 177691 (Tex. App. Jan. 25, 2007) (Not yet released for publication)

Dec 01 2007

Key Insight: Appellate court affirmed trial court’s order granting temporary injunction protecting Vinmar’s trade secrets; evidence at hearing included testimony of neutral forensic computer analyst jointly hired by the parties pursuant to court order, who examined former employees? computers and located some 321,000 “hits” using keyword search “Vinmar,” which expert said translated into thousands of Vinmar documents on those computers, and found indications of possible spoliation

Nature of Case: Chemical trading company sued former employees to enforce confidentiality and non-compete agreements

Electronic Data Involved: Proprietary information, spreadsheets

Crutcher v. Fidelity Nat’l Ins. Co., 2007 WL 430655 (E.D. La. Feb. 5, 2007)

Dec 01 2007

Key Insight: Court declared subpoena invalid because requirements of Rule 26(d) apply to subpoenas issued to non-parties, and parties’ written correspondence did not satisfy the requirements of Rule 26(f) to meet, confer, and develop a discovery plan

Nature of Case: Insurance coverage

Electronic Data Involved: Hurricane damage evaluation materials prepared by third party

McKenna v. Nestle Purina PetCare Co., 2007 WL 433291 (S.D. Ohio Feb. 5, 2007)

Dec 01 2007

Key Insight: Court denied without prejudice plaintiff?s motion for sanctions based upon defendant?s claimed inability to retrieve the contents of plaintiff?s email account, where defendant had identified several older emails at the time of plaintiff?s discharge (to support its termination of plaintiff) but represented in discovery that its employees’ email accounts were overwritten beginning on the eighth day after a message was either sent or received and that no additional emails existed beyond those produced; court suggested that defendant investigate the matter and be prepared, if requested in discovery, to provide a further explanation of the apparent discrepancy between its ability to retrieve emails at the time of plaintiff?s discharge and its current ability to do so

Nature of Case: Wrongful termination, employment discrimination

Electronic Data Involved: Email

Self v. Equilon Enters., LLC, 2007 WL 427964 (E.D. Mo. Feb. 2, 2007)

Dec 01 2007

Key Insight: In order issued after parties’ status hearing on production of electronic documents, court recounted history of discovery conferences and orders addressing defendants’ production, including court’s prior order directing defendants to produce all emails tagged by the search term “transfer price” whether deemed relevant or not after completing a privilege review, and concluded that, since plaintiffs had not shown that need for further electronic discovery outweighed burdens and costs of retrieving and producing such information, and had not shown that defendants were withholding or ?cherry picking? relevant emails, plaintiffs would bear the costs of all additional email searches, if any

Nature of Case: Breach of contract

Electronic Data Involved: Email

Floeter v. City of Orlando, 2007 WL 486633 (M.D. Fla. Feb. 9, 2007)

Dec 01 2007

Key Insight: Court denied motion for spoliation sanctions based on city’s overwriting of backup tapes and failure to preserve computer’s hard drive, where subject computer had been reassigned and its hard drive re-imaged before discovery requests were served, missing evidence was not crucial to plaintiff’s claims, and destruction of the material was not done in bad faith

Nature of Case: Employment discrimination

Electronic Data Involved: Computer hard drive and backup tapes

Marin v. Evans, 2007 WL 655456 (E.D. Wash. Feb. 27, 2007)

Dec 01 2007

Key Insight: Where it was undisputed that defendants had taken steps to prevent spoliation of evidence and the only support for preservation order was that defense counsel had been accused of destroying evidence in a separate case, court found that plaintiffs failed to show any evidence of past evidence destruction by the parties to this case and concluded that preservation order was not necessary

Nature of Case: RICO civil action

Electronic Data Involved: Emails

Author - eDiscovery Import