eDiscovery Import – Page 92 – Electronic Discovery Law

Townsend v. Ohio Dept. of Transp., No. 11AP-672, 2012 WL 2467047 (Ohio Ct. App. June 28, 2012)

Dec 01 2012

Key Insight: Trial court abused its discretion in denying motion to conduct forensic analysis of defendant?s email and electronic data systems where defendant?s employee admitted to sending a highly relevant email that was never produced and where defendant failed to establish that production ?would incur undue burden or expense?; court?s analysis included consideration of whether deleted emails were discoverable (yes) and the need for a protocol to protect the producing party?s privilege, confidential information

Nature of Case: Personal injury resulting from auto accident

Electronic Data Involved: Email

Finnerty v. Stiefel Labs. Inc., 900 F. Supp. 2d 1317 (S.D. Fla. 2012)

Dec 01 2012

Key Insight: Court held that costs related to the creation of an electronic database solely for the benefit of Plaintiff?s counsel were not taxable as fees for exemplification

Nature of Case: Securities fraud

Electronic Data Involved: Taxable costs

Chura v. Delmar Gardens of Lenexa, Inc., No. 11-2090-CM-DJW, 2012 WL 940270 (D. Kan. Mar. 20, 2012)

Dec 01 2012

Key Insight: Court found that ?Defendant?s failure to produce any ESI, such as emails, attachments, exhibits, and word processing documents raise[d] justifiable concerns that Defendant may have 1) failed to preserve relevant evidence, or 2) failed to conduct a reasonable search for ESI responsive to Plaintiff?s discovery requests? and thus scheduled an evidentiary hearing and ordered Defendant to be prepared to present evidence on its preservation and search efforts (specific topics identified in court?s order)

Nature of Case: Employment discrimination

Electronic Data Involved: Miscellaneous ESI

Colgate-Palmolive Co. v. Tandem Indus., 485 Fed. Appx. 516 (3d Cir. 2012)

Dec 01 2012

Key Insight: Considering Defendant?s argument for an adverse inference where his former employer failed to produce his former work laptop and files, the court noted that the ?undisputed evidence show[ed] that Colgate destroyed the data on the laptop shortly after Flower?s retirement,? and concluded that: ?When data is destroyed pursuant to normal recordkeeping practices (and in particular when it is destroyed in relation to a major event like an employee?s retirement), no adverse inference is warranted.?

Nature of Case: Breach of fiduciary duty

Electronic Data Involved: Laptop and its files

Pacificorp v. N.W. Pipeline GP, No. 3:10-cv-00099-PK, 2012 WL 6131558 (D. Or. Dec. 10, 2012)

Dec 01 2012

Key Insight: Addressing issue of taxable costs related to electronic discovery, court allowed recovery of costs related to ?converting already selected files into a database,? bates stamping, conversion to searchable PDF, and storage of electronic data but denied recovery as to collecting documents and culling them for responsiveness

Electronic Data Involved: Taxable costs related to ESI

James v. Edwards, No. CL11-225, 2012 WL 9735714 (Va. Cir. Ct. July 24, 2012)

Dec 01 2012

Key Insight: Court granted in part motion to compel disclosure of the contents of Plaintiff?s Facebook account and ordered Plaintiff to provide his counsel with his username and password, which his counsel could then utilize to provide access to Plaintiff?s Facebook account to defense counsel; defendant was not allowed to be present during the review of his Facebook account; court imposed date range on relevant materials; court found Plaintiff?s expectation of privacy in his account ?misplaced? in light of Facebook?s privacy disclaimers which ?dispel any notion that information one chooses to share, even if only with one friend, will not be disclosed to anybody else?

Nature of Case: Personal injury

Electronic Data Involved: Facebook

FTC v. Lights of America, Inc., No. SACV 10-1333 (JVS) (MLGx), 2012 WL 695008 (C.D. Cal. Jan. 20, 2012)

Dec 01 2012

Key Insight: Court held plaintiff was not obligated to issue a litigation hold at the beginning of its full-phase investigation or upon the issuance of a CID because litigation was not reasonably foreseeable at those times, noting that the duty to preserve attaches when litigation is probable, which means ?more than a possibility?; court declined to order sanctions related to plaintiff?s auto-delete policy where the policy called for the preservation of relevant ESI and the deletion of duplicates and indicated that even if the policy resulted in the inadvertent loss of email, there was no evidence of bad faith, and cited Rule 37(e) re: safe harbor; court declined to impose sanctions for failure to issue a litigation hold over documents not in the plaintiff?s possession or control

Nature of Case: Government investigation

Electronic Data Involved: ESI

Brocade Commc?ns Sys. v. A10 Networks, Inc., No. 10-CV-03428-LHK, 2012 WL 70428 (N.D. Cal. Jan. 9, 2012)

Dec 01 2012

Key Insight: Finding that plaintiff had shown good cause for requiring production of ?not reasonably accessible information,? the court granted plaintiff?s motion to inspect an individual defendant?s hard drive noting that such inspections had been allowed by other courts in cases of alleged misappropriation of trade secrets and further citing the relevance of the hard drive?s contents to the underlying claims, the inability to obtain the evidence elsewhere, and defendant?s inability to explain its statement that the hard drive in question had been ?recycled?; court held that plaintiff was ?not entitled to set the conditions of the inspection unilaterally nor select the person who will perform it? and ordered the parties to confer to agree on a protocol

Nature of Case: Misappropriation of trade secrets

Electronic Data Involved: Contents of hard drive

Lake Village Healthcare Ctr., LLC v. Hatchett, 407 S.W. 3d 521 (Ark. 2012)

Dec 01 2012

Key Insight: Trial court did not err when it struck part of defendants’ answers as sanction for discovery violations where trial court’s order specifically detailed the opportunities afforded defendants to either comply with the email request or furnish a basis upon which the court could determine they were trying to comply with the request, and trial court found that defendants failed to produce the emails in response to the discovery request, failed to produce the emails when ordered by the court, failed to timely notify the court of compliance problems, failed to furnish sufficient information of their good faith efforts, and failed to furnish information regarding when compliance could be expected

Nature of Case: Wrongful death, negligence, breach of fiduciary and confidential duty, medical malpractice

Electronic Data Involved: Email

Trail v. Lesko, NO. GD-10-017249, 2012 WL 2864004 (Pa. Com. Pl. July 5, 2012)

Dec 01 2012

Key Insight: Relying on PA Rule of Civil Procedure 4011(b) ?which bars discovery that would cause ?unreasonable annoyance, embarrassment, oppression …?? court denied cross motions to compel discovery of parties? social media content ?because the intrusions that such discovery would cause were not offset by any showing that the discovery would assist the requesting party in presenting its case?

Nature of Case: Motor vehicle accident

Electronic Data Involved: Social Media content (e.g., Facebook)

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