Case Summaries – Page 174 – Electronic Discovery Law

Am. Builders & Contractors Supply Co., Inc. v. Roofers Mart, Inc., No. 1:11-CV-19 (CEJ), 2012 WL 2992627 (E.D. Mo. July 20, 2012)

Dec 01 2012

Key Insight: Where Defendant reinstalled the operating system on his personal laptop two days after his first deposition (where he was informed a request for ESI would be forthcoming) claiming that he did so to ensure that he did not possess Plaintiff?s proprietary information, and where Defendant had previously deleted the information on a relevant flash drive, the court found Defendant had acted intentionally and that Plaintiff had been prejudiced by the loss and ordered an adverse inference allowing, but not requiring, the jury to infer that the deleted information was unfavorable to Defendant and also ordered Defendant to pay Plaintiff?s attorneys? fees and costs connected with bringing the motion for sanctions; court acknowledged applicability of agency law in determining whether to impose sanctions against a party for spoliation by its employees but declined to do so in the present case

Nature of Case: Breach of non-compete, misappropriation of trade secrets

Electronic Data Involved: ESI

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

McGrath v. United States, 103 Fed. Cl. 658 (Fed. Cl. 2012)

Dec 01 2012

Key Insight: Court ordered adoption of parties? proposed order concerning the management of electronic discovery which contained ?some but not all? of the provision of the [Model] Order drafted by the Federal Circuit and indicated its additional consideration of the [Model] Order adopted by the E.D. Texas

Electronic Data Involved: ESI

Nithiananthan v. Toirac, No. CA2011-09-098, 2012 368332 (Ohio Ct. App. Feb. 6, 2012)

Dec 01 2012

Key Insight: Court held that ?a requesting party must demonstrate that the other party has committed a history of discovery violations to the extent that the court finds it necessary to order the invasion of privacy attendant to forensic imaging? and also identified an appropriate forensic imaging protocol; judgment ordering forensic imaging of defendant?s computer was reversed and remanded

Nature of Case: Private Nuisance

Electronic Data Involved: Forensic image of defendants’ computer

Jacob v. Duane Reade, Inc., No. 11 Civ. 0160(JMO)(THK), 2012 WL 651536 (S.D.N.Y. Feb. 28, 2012)

Dec 01 2012

Key Insight: Court found inadvertent production of partially privileged email constituted waiver where, despite reasonable efforts to prevent production, defendants allowed questioning regarding the email at deposition and did not realize the email was privileged and request its return until months later (when preparing for a separate deposition) and thus ?did not act promptly to rectify the disclosure?

Nature of Case: FLSA

Electronic Data Involved: Privileged email

Geller v. Von Hagens, No. C11-80269, 2012 WL 1413461 (N.D. Cal. Apr. 23, 2012)

Dec 01 2012

Key Insight: Court granted third party?s motion to quash a subpoena where the court determined the subpoena was unduly burdensome, particularly in light of the third party?s estimate that the cost of identifying the requested information could exceed $40,000?a significant sum for a non-profit museum; ?as important? as the analysis of undue burden was the fact that plaintiff sought the requested information only from third party sources rather than from defendants which the court found ?only exacerbate[ed] the burden?

Nature of Case: Defamation and tortious interference

Electronic Data Involved: ESI

915 Broadway Assocs. LLC v. Paul, Hastings Janofsky & Walker, LLP, No. 403124/08, 2012 WL 593075 (N.Y. Sup. Ct. Feb. 16, 2012)

Dec 01 2012

Key Insight: For egregious spoliation, including intentional deletions by key custodians, plaintiff?s failure to investigate storage practices or to ensure preservation, several custodians? failure to suspend auto-delete functions associated with their files, failure to suspend destruction of backup tapes, and replacement of relevant servers, the court ordered dismissal of plaintiff?s claims

Nature of Case: Legal malpractice

Electronic Data Involved: ESI

Tourgeman v. Collins Fin. Servs., Inc., No. 08cv1392-JLS(NLS), 2012 WL 28289 (S.D. Cal. Jan. 5, 2012)

Dec 01 2012

Key Insight: Where defendants? mistake in searching resulted in the failure to produce relevant documents and where plaintiff alleged that those documents would have established numerosity for purposes of his motion to certify (and where the motion was denied without them), court found that the mistake was not willful or in bad faith and that there was no prejudice where plaintiff was free to re-file his motion and thus, as a sanction, awarded limited attorneys? fees incurred as the result of defendants? mistake and noted plaintiff?s failure to timely review the documents produced by defendants, which may have alerted him to the problems prior to filing his motion for class certification

Nature of Case: Class action

Electronic Data Involved: ESI

White Baptist Mem?l Healthcare Corp., No. 08-2478, 2012 WL 3776918 (W.D. Tenn. Aug. 29, 2012)

Dec 01 2012

Key Insight: Court denied plaintiff?s motion seeking reversal of Clerk?s entry of bill of costs and specifically found that costs related to ?OCR capture? which the court acknowledged was a ?form of electronic discovery? were recoverable and that the OCR capture in this case was a necessary party of the discovery process

Nature of Case: Violation of FLSA

Electronic Data Involved: Costs related to electronic discovery

Clark Cnty. v Jacobs Facilities, Inc., No. 2:10-cv-00194-LRH-PAL, 2012 WL 4609427 (D. Nev. Oct. 1, 2012)

Dec 01 2012

Key Insight: Despite inadvertently producing (or discussing without objection) the at-issue document as many as times thirteen times, the court found that privilege was not waived where the parties stipulated that inadvertent production would not result in waiver and where the analysis under Fed R Evid 502 resulted in a finding that reasonable steps were taken to prevent disclosure, including key word searches for privileged documents, and that prompt steps were taken to secure the document?s return upon defendant learning of the inadvertent production; notably, it appeared that the document was not identified either because it was labeled ?client-attorney? rather than ?attorney-client?

Nature of Case: Alleged gross mismanagement of construction project result in significant costs to plaintiff

Electronic Data Involved: ESI

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