eDiscovery Import – Page 98 – Electronic Discovery Law

Liberman v. Fedex Ground Package Syst., Inc., 2011 WL 145474 (E.D.N.Y. Jan. 18, 2011)

Dec 01 2011

Key Insight: Where defendant negligently failed to preserve information that would have revealed whether a FedEx agent delivered packages to the address of the relevant accident on the day in question and where the presence of such a delivery person was disputed by FedEx, the court declined to grant default judgment but ordered an adverse inference establishing that a FedEx agent had delivered a package to the relevant address on the date of the accident

Nature of Case: Injury resulting from being hit by delivery handtruck loaded with boxes

Electronic Data Involved: ESI

Seven Seas Cruises S. DE R.L. v. V. Ships Leisure Sam, 2011 WL 181439 (S.D. Fla. Jan. 19, 2011)

Dec 01 2011

Key Insight: Where plaintiffs challenged the sufficiency of defendants? search, including whether defendants had used the agreed-upon search terms, and the format of defendant?s production, and where plaintiff specifically pointed to an email that should have been produced but was not, the court noted plaintiffs? concession that defendants? search methodology did not result in plaintiff receiving fewer documents and that they had been able to use the information produced, despite their arguments regarding format, but ?nevertheless concluded? that defendants should provide additional information and ordered the submission of an affidavit detailing defendants? search efforts; the court concluded that the dispute in this case was ?caused primarily by the parties? mutual failure to communicate and work together in good faith to resolve the areas of dispute? and counseled that in future the parties should more clearly specify the way in which discovery will be conducted and, if they cannot agree, should seek judicial assistance

Nature of Case: Suit for damages arising from failure to provide proper ship management

Electronic Data Involved: ESI

United States v. Halliburton, Co., 272 F.R.D. 235 (D.D.C. 2011)

Dec 01 2011

Key Insight: Court declined to compel defendants to conduct additional searching where defendants established the significant efforts already undertaken to locate and produce responsive materials and where plaintiff made ?no showing whatsoever . . . that those emails not produced will make the existence of some crucial facts more likely than not?, the court concluded that ?the search relator demands cannot possibly be justified when one balances its cost against its utility.?; court went on to establish that the inability to find certain information, despite a duty to preserve, did not negate the ability of a party to rely on Rule 26(b)(2)(C) to argue against additional searching

Nature of Case: Fraud

Electronic Data Involved: Additional searching for ESI

Seyler v. T-Sys. N. Amer., Inc., 2011 WL 196920 (S.D.N.Y. Jan. 21, 2011)

Dec 01 2011

Key Insight: Court found no waiver of plaintiff?s claims of privilege resulting from the production of one privileged email where, pursuant to FRE 502(a) the waiver was not intentional as established by the sworn statement of plaintiff?s counsel that he was not aware that the plaintiff?s sister, the other party to the relevant email, was an attorney

Nature of Case: Hostile work environment, retaliation, intentional infliction of emotional distress

Electronic Data Involved: Privileged email

Apelbaum v. Networked Insights, Inc., 2011 WL 286125 (W.D. Wis. Jan. 27, 2011)

Dec 01 2011

Key Insight: Court declined to impose sanctions for plaintiff?s failure to disable software set to automatically erase and write-over internet-related files whenever the browser closed where plaintiff asserted that he installed such software as a regular practice on all of his computers and where because of the automatic nature of the software, evidence was lost well before plaintiff filed his suit or defendant filed its countersuit; defendant would be allowed to present additional evidence of spoliation at trial and the court indicated its willingness to reconsider sanctions upon a showing that more than just internet-related files were deleted

Nature of Case: Breach of contract related to compensation

Electronic Data Involved: Laptop

Schulte v. NCL (Bahamas) Ltd., 2011 WL 256542 (S.D. Fla. Jan. 25, 2011)

Dec 01 2011

Key Insight: Court rejected defendant?s assertion that relevant video surveillance footage was protected as work product as a result of its preservation in anticipation of litigation and pursuant to the direction of counsel where the video was ?made as part of the normal course of surveillance videos made by NCL? and ?was not created in the work product context?

Nature of Case: Slip and fall

Electronic Data Involved: Surveillance footage

Harmon v. Lighthouse Capital Funding, Inc. (In re Harmon), 2011 WL 302859 (Bankr. S.D. Tex. Jan. 26, 2011)

Dec 01 2011

Key Insight: Providing a detailed explanation of defendant?s and counsel?s discovery abuses, including failing to search for internal emails, ignoring plaintiff?s subpoena, and counsel?s offering of ?evasive and unfounded testimony in an effort to rationalize his inexcusable non-production? of certain relevant (and repeatedly requested) documents, among other things, the court denied defendant?s motion for reconsideration and upheld as a sanction the establishment of a particular fact in plaintiff?s favor, namely that Lighthouse did not establish an escrow account in accord with its obligations under its agreement with plaintiffs

Nature of Case: Adversary proceeding in bankruptcy

Electronic Data Involved: Emails, bank statements

Medeva Pharma Suisse A.G. v. Roxane Labs., Inc., 2011 WL 310697 (D.N.J. Jan. 28, 2011)

Dec 01 2011

Key Insight: Despite acknowledging defendant?s failure to implement a litigation hold until at least 5 years after it first anticipated litigation, the court denied plaintiff?s motion for sanctions where the quantity and quality of the documents produced by defendant established that relevant information was ?diligently preserved? pursuant to defendant?s document retention policy and where plaintiff failed to establish that it had been prejudiced or that its ability to effectively prepare for trial had been impeded

Nature of Case: Hatch-Waxman patent infringement

Electronic Data Involved: ESI, emails

Gentex Corp. v. Sutter, No. 3:07-CV-1269, 2011 WL 5040893 (M.D. Pa. Oct. 24, 2011)

Dec 01 2011

Key Insight: For defendant?s employees? intentional spoliation, including use of scrubbing software and destruction of CD-ROMS, court imposed default judgment against the employees but declined to impose sanctions on defendant corporation where questions of fact remained as to whether it engaged in spoliation

Nature of Case: Violations of Computer Fraud and Abuse Act and PA Uniform Trade Secrets Act

Electronic Data Involved: ESI

United States v. AT&T, Inc., No. 1:11-cv-01560, 2011 WL 5347178 (D.D.C. Nov. 6, 2011)

Dec 01 2011

Key Insight: Court denied non-party?s motion to quash defendant?s subpoena where defendant adequately narrowed its request and where the non-party failed to establish that the burden of responding was undue, including by failing to provide particulars related to the expected burden of responding; court?s analysis closely followed standard set forth in Rule 26(b)(2)(C)(iii)

Nature of Case: DOJ investigation

Electronic Data Involved: ESI

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