Case Summaries – Page 163 – Electronic Discovery Law

Prowess, Inc. v. Raysearch Labs. AB, No. WDQ-11-1357, 2013 WL 1976077 (D. Md. May 9, 2013)

Dec 01 2013

Key Insight: Pursuant to FRE 502(b), the court found privilege had not been waived where production of the at-issue document was inadvertent (instead of producing certain documents within a sub-folder, the whole folder was mistakenly produced), where reasonable steps were taken to prevent the disclosure (trained and supervised contract attorneys conducted privilege review and only 16 of 60,000 documents were inadvertently produced) and where reasonable and prompt steps were taken to rectify the error (plaintiff contacted defendant the day after it learned of the inadvertent production)

Electronic Data Involved: ESI (infringement analysis)

Tapp v. New York State Urban Dev. Corp., No. 9131N, 2013 WL 3622969 (N.Y. App. Div. Jan. 31, 2013)

Dec 01 2013

Key Insight: Lower court ?correctly determined that plaintiff?s mere possession and utilization of a Facebook account is an insufficient basis to compel plaintiff to provide access to the account or to have the court conduct an in camera inspection? and that ?to warrant discovery, defendants must establish a factual predicate for their request by identifying relevant information in plaintiff?s Facebook account?

Nature of Case: Personal Injury

Electronic Data Involved: Facebook

Ameranth v. Pizza Hut, Inc., 2013 WL 636936 (S.D. Cal. Feb. 20, 2013)

Dec 01 2013

Key Insight: Court declined to compel production of ?the entire source code tree for each accused product? where it found that Plaintiff had not shown the need to fully understand all operations as opposed to ?only those aspects accused in the infringement claims? and where the alleged burden of production was great; court ordered that production of relevant portions of source code must include original files names and be in native format

Nature of Case: Patent Infringement

Electronic Data Involved: Source Code

Distefano v. Law Offices of Barbara H. Katsos, PC, No. CV 11-2893(JA)(AKT), 2013 WL 1339548 (E.D.N.Y. Mar. 29, 2013)

Dec 01 2013

Key Insight: Court found attorney?s duty to preserve was triggered upon receipt of correspondence terminating her representation but withheld judgment on issue of spoliation until hearing could be held

Nature of Case: Legal Malpractice

Electronic Data Involved: ESI, computers

Gateway Logistics, Inc. v. Smay, No. 12SA287, 2013 WL 1557840 (Colo. Apr. 15, 2013)

Dec 01 2013

Key Insight: Where, despite defendant?s assertion of a privacy interest in his and his wife?s (a non-party) electronic devices (computers and smartphone) and phone records, the trial court failed to conduct a proper balancing test before granting Plaintiff?s motion to compel inspection and production of the records, the Supreme Court found that the trial court had abused its discretion, that the invocation of a privacy right should have triggered analysis of the relevant balancing test, and that the wife?s non-party status was a factor for consideration, and vacated the trial court?s order and remanded for further consideration

Nature of Case: Breach of fiduciary duty and misappropriation of trade secrets

Electronic Data Involved: Personal computers, smartphone

Out of the Box Developers LLC v. Logicbit Corp., No. 10 CVS 8327, 2013 WL 3090303 (N.C. Sup. Ct. June 5, 2013)

Dec 01 2013

Key Insight: Where Plaintiff sought production of three versions of at-issue software but encountered repeated delays on the part of Defendants and where one Defendant eventually discovered that he was in fact in possession of (i.e., had preserved) the older version of the software that Plaintiffs requested but had failed to discover the information because he failed to make inquiry of ?others under his control,? including his law firm?s IT personnel, the court elected to impose ?the lesser sanction of taxing costs? and ordered that Defendants reimburse Plaintiff for its reasonable costs and expenses associated with its various motions to compel; Defendants were ordered to install a current copy of the software on a laptop provided by the Plaintiff, to provide Plaintiff with direct access to the customized version currently in use by the Defendant/law firm, and to produce to Plaintiff a copy of the recently discovered database backup containing the software as originally installed

Nature of Case: Claims that defendants “stole a series of [Plaintiff’s] software customizations” and incorporated them into their software

Electronic Data Involved: Versions of case management software (original, customized, and current)

Breathablebaby LLC v. Crown Crafts, Inc., No. 12-cv-94 (PJS/TNL), 2013 WL 3350594 (D. Minn. May 31, 2013)

Dec 01 2013

Key Insight: Calling defendants collection efforts ?incomplete and somewhat haphazard? where defendant provided no instruction to its chosen custodians regarding the types of documents to search for, whether to check with subordinates, or how to search for documents, the court reopened discovery so that production could ?commence in accordance with the parties? joint ESI plan,? and ordered the parties to meet and confer regarding search terms and an amended scheduling order; court considered proper logging of emails and ordered defendant to produce an amended privilege log that listed each privileged email contained in an email string separately

Nature of Case: Patent infringement

Electronic Data Involved: Email, misc. ESI

Linde v. Arab Bank, PLC, 706 F.3d 92 (2d Cir. 2013)

Dec 01 2013

Key Insight: On appeal from sanctions order against Arab Bank, court found it did not have jurisdiction over the order for sanctions and dismissed the appeal; court also found Arab Bank was not entitled to a writ of mandamus vacating the sanctions order and the petition for a writ of mandamus was therefore denied

Nature of Case: Knowingly and purposefully aiding and abetting terrorists and terrorist organizations

Electronic Data Involved: Foreign banking information

In re Air Crash Near Clarence Center, New York, No. 09-md-2085, 2013 WL 6073635 (W.D.N.Y. Nov. 18, 2013)

Dec 01 2013

Key Insight: Where Airline sought production of decedent?s son?s Facebook friends list for purposes of assessing the son?s Asperger?s disorder and his ability to socialize and communicate with others, court found the Airline?s argument of relevance unpersuasive in light of the ?ease with which ?friends? can be collected on Facebook? and further reasoned that the production of the other contents of the son?s account (which was provided by his mother – who was a party) was sufficient

Nature of Case: Airline crash

Electronic Data Involved: Facebook “friend list”

Sung v. Mission Valley Renewable Energy, LLC, No. CV-11-5163-RMP, 2013 WL 4523561 (E.D. Wash. Aug. 27, 2013)

Dec 01 2013

Key Insight: Where defendants received plaintiff?s production of approximately 3,600 electronic documents less than two weeks before trial was to begin, and defendants were only able to obtain the documents after they arranged for an independent electronic discovery review in response to plaintiff?s prior discovery abuses, court found that the circumstances of case were extraordinary, that plaintiff acted willfully and in bad faith in violating FRCP 26, 37 and the court?s scheduling order, and that analysis of the five relevant factors warranted dismissal of plaintiff?s claims against each defendant with prejudice

Nature of Case: Washington State Securities Act claims, breach of fiduciary duty, negligence, and related claims

Electronic Data Involved: 3,600 electronic documents which, if printed out, would total more than 10,000 pages

Catagory:Case Summaries