eDiscovery Import – Page 207 – Electronic Discovery Law

Network Sys. Architects Corp. v. Dimitruk, 2007 WL 4442349 (Mass. Super. Ct. Dec. 6, 2007)

Dec 01 2007

Key Insight: Where former employee admitted using file shredder program on his NSA-issued laptop before returning it, and evidence showed use of file shredder program on competitor-issued laptop computer, court found defendants? conduct was ?egregious? and amounted to spoliation but denied plaintiff?s request for entry of default judgment; court instead ordered production of computer hard drive for further examination, dismissed defendants? counterclaims, and ordered defendants to pay attorneys? fees and expenses incurred as a result of defendants? misconduct

Nature of Case: Seller of computer hardware and software sued former employee and competitor for misappropriation of trade secrets, unfair competition and related claims

Electronic Data Involved: Laptop computers

Stroupe v. Wal-Mart Stores East, L.P., 2007 WL 3223224 (E.D. Va. Oct. 29, 2007)

Dec 01 2007

Key Insight: Adverse inference instruction not warranted for defendant’s routine destruction of surveillance videotapes created on date of incident; defendant presented evidence that there was no videotape that depicted the subject area where the incident occurred and plaintiff did not show that destroyed videotapes contained any images or information relevant to any issue at trial

Nature of Case: Personal injury

Electronic Data Involved: Surveillance videotapes

Kellogg v. Nike, Inc., 2007 WL 4570871 (D. Neb. Dec. 26, 2007)

Dec 01 2007

Key Insight: Resolving various discovery issues, court found defendants? explanation of document search sufficient and observed that plaintiff could not identify any particular document or category of missing documents based on evidence aside from his own incredulity; court added that, if gaps evolved after defendants’ supplementation of production, plaintiff could revisit the issue

Nature of Case: Patent infringement

Electronic Data Involved: Email and other ESI

Solow v. Aspect Res., LLC, 2007 WL 3256944 (Del. Ch. Oct. 30, 2007)

Dec 01 2007

Key Insight: Where nonparty merely asserted, without adequate factual support, that compliance with the subpoena would cause it to incur ?significant expenses,? court denied nonparty?s request for costs for time spent by its employees configuring and executing electronic search and by attorneys reviewing results of search

Nature of Case: Breach of limited partnership agreement

Electronic Data Involved: Unspecified ESI

Haka v. Lincoln County, 246 F.R.D. 577 (W.D. Wis. 2007)

Dec 01 2007

Key Insight: Balancing relevant factors, court ruled that fairness and efficiency required parties to proceed with search for ESI incrementally and limited initial search to emails stored on hard drives; court instructed plaintiff to narrow his search terms, and any additional searches would occur only by joint agreement or court order; parties to share equally the costs of performing initial keyword search, but defendant to pay full cost of privilege/relevance review

Nature of Case: Employment litigation

Electronic Data Involved: Email and other ESI

Guy Chem. Co., Inc. v. Romaco AG, 243 F.R.D. 310 (N.D. Ind. 2007)

Dec 01 2007

Key Insight: Where non-party used outside computer firm to handle its electronic data and estimated that cost to comply with subpoena would be $7,200, court found that data was “not reasonably accessible because of undue burden or cost” but ordered production in light of good cause shown, with cost of production to be paid by party who issued subpoena

Nature of Case: Breach of contract

Electronic Data Involved: Routine business documents stored electronically

In re Krause, 367 B.R. 740 (Bankr. D. Kan. 2007)

Dec 01 2007

Key Insight: As sanction for debtor?s deliberate and intentional use of a wiping software program on computers after learning that court was ordering their production, and because of severe prejudice to trustee and government, court entered partial default judgment against debtor and ordered debtor to turn over all computers, portable storage devices and any backups within 10 days of order, and to execute any waivers or authorizations necessary for trustee and government to obtain assorted financial records; court further ordered that, if debtor did not comply within 10 days, bench warrant would issue for debtor?s apprehension and debtor would be incarcerated until he purged himself of contempt and complied with orders

Nature of Case: Government brought adversary proceeding against Chapter 7 debtor to except his tax debt from discharge and declare various entities his alter ego

Electronic Data Involved: Hard drives, email

In re Kmart, 371 B.R. 823 (Bankr. N.D. Ill. 2007)

Dec 01 2007

Key Insight: Kmart’s failure to implement litigation hold and “woefully insufficient” efforts to retrieve responsive information did not warrant spoliation sanctions on present record and would be denied without prejudice to creditor’s renewing it in the future should evidence support it; court awarded creditor portion of attorneys’ fees and costs and ordered Kmart, to the extent it had not already done so, to perform a systematic search of all files on certain drives and produce responsive material to counsel within 14 days of order

Nature of Case: Creditor asserted breach of contract and other claims against Chapter 11 debtor in possession

Electronic Data Involved: Email and other ESI

Hunts Point Realty Corp. v. Pacifico, 2007 WL 2304859 (N.Y. Sup. July 24, 2007)

Dec 01 2007

Key Insight: Although court concluded that plaintiff had not adequately proven damages under any theory and thus damage award was zero, court found that defendant’s “unabashed flaunting of this Court’s preservation order” in failing to preserve emails resulted in additional work by plaintiffs’ counsel and the court, and as sanction, court awarded attorneys’ fees and costs for all work done by counsel related to defendant’s failure to preserve email

Nature of Case: Breach of contract

Electronic Data Involved: Email

Peterson v. Union Pacific R.R. Co., 2007 WL 3232501 (C.D. Ill. Nov. 1, 2007

Dec 01 2007

Key Insight: Court granted in part plaintiffs’ motion to enter and inspect crossing area and directed defendant to arrange for an employee to be on-site during the inspection to provide a download of all available date from event recorders and other components and equipment of the crossing signal system stored on-site; court denied motion to compel production of particular employee’s computer since the computer had been returned to a vendor and defendant had already produced a copy of computer’s hard drive

Nature of Case: Claims arising from collision between freight train and automobile

Electronic Data Involved: Data from event recorders and other components and equipment of the crossing signal system

Author - eDiscovery Import