Case Summaries – Page 178 – Electronic Discovery Law

Annex Books, Inc. v. City if Indianapolis, No. 1:03-cv-SEB-TAB, 2012 WL 892170 (S.D. Ind. Mar. 14, 2012)

Dec 01 2012

Key Insight: Where plaintiff was unable to produce requested ?bookkeeping data? in a manner that was usable by defendants despite significant efforts to do so (including retaining two computer forensic services, spending over $9500 on 30 hour of work, and purchasing QuickBooks Pro in an attempt to export the relevant data), the court found that plaintiff had demonstrated that the data was not reasonably accessible but also found that defendant had demonstrated good cause for seeking the information and ordered defendant to bear the costs of additional efforts (noting that it was ?unreasonable? for defendant to insist on production in QuickBooks format when incompatibility had been established)

Electronic Data Involved: ESI

S2 Automation LLC v. Micron Tech., Inc., No. CIV 11-0884 JB/WDS, 2012 WL 3150387 (D.N.M. July 23, 2012)

Dec 01 2012

Key Insight: Over objection of plaintiff, court entered non-waiver and claw-back order pursuant to FRE 502(d)

Electronic Data Involved: ESI

Robinson v. City of Arkansas, Kansas, No. 10-1431-JAR-GLR, 2012 WL 603576 (D. Kan. Feb. 24, 2012)

Dec 01 2012

Key Insight: Addressing the sufficiency of defendant?s search for responsive ESI, among other discovery disputes, court found that defendant failed to conduct a reasonable search and ordered additional searching as specified by the court and that defendant produce mirror images of the computers and external drives of a former supervisor for defendant that was particularly relevant to the litigation (the court called the failure to search his computers ?inexcusable and inexplicable?); court granted protective order precluding defendant?s expert from requirement to produce hardware (computers, etc.) already subject to production by defendant pursuant to court?s order where such duplication was unnecessary and would unnecessarily increase costs

Nature of Case: civil rights and employment law

Electronic Data Involved: ESI

Kilopass Tech., Inc. v. Sidense Corp., No. C-10-02066 SI, 2012 WL 1534065 (N.D. Cal. May 2, 2012)

Dec 01 2012

Key Insight: Conducting waiver analysis pursuant to Fed. R. Evid. 502(b), court found that plaintiff?s efforts to preclude disclosure were not reasonable where plaintiff claimed the inadvertent disclosure was the result of mistakes on the party of the party, its counsel, and its vendor, including the client?s failure to provide names of all law firm with which it had worked, the vendor?s failure to run a privilege search on all production batches, and counsel?s failure to adequately review the documents identified for production before providing them to opposing counsel; court also relied on the large number of documents inadvertently produced?more than one in 50?reasoning, ?[t]he high proportion of privilege documents evidences a failure on Kilopass?s part to properly screen the documents.?

Nature of Case: Patent infringement

Electronic Data Involved: ESI

Linnebur v. United Telephone Assoc., Inc., No. 10-1379-RDR, 2012 WL 2370110 (D. Kan. June 21, 2012)

Dec 01 2012

Key Insight: Where Plaintiff was able to establish that defendant destroyed ESI while under a duty to preserve but was unable to establish that she was actually prejudiced by the loss, the court denied Plaintiff?s motion for sanctions without prejudice and, noting that it was ?troubled? by Defendant?s preservation failures and counsel?s apparent failure to oversee his client?s discovery efforts, the court sua sponte reopened discovery solely as to the issue of spoliation

Nature of Case: Unlawful termination under Age Discrimination in Employment Act

Electronic Data Involved: Email, ESI

Oyebade v. Boston Scientific Corp., No. 1:11-cv-0968-JMS-DML, 2012 WL 4020971 (S.D. Ind. Sept. 12, 2012)

Dec 01 2012

Key Insight: For a ?pattern of discovery misconduct, including the spoliation of evidence? (an audio tape of a meeting with HR), the court imposed an adverse inference and ordered the jury be instructed that Plaintiff destroyed the audio recording ?under circumstances that suggest that the contents ? would not be helpful in proving his claims? and further ordered that Plaintiff would not be allowed to present evidence regarding the meeting with HR, that the jury be instructed to accept defendant?s evidence about the meeting, and that defendant was entitled to its attorneys fees and expenses incurred in seeking redress for the spoliation

Nature of Case: Employment discrimination

Electronic Data Involved: Audio tape of meeting with HR

State v. Fox, No. 11CA3302, 2012 WL 4946436 (Ohio Ct. App. Oct. 16, 2012)

Dec 01 2012

Key Insight: ?[B]ecause appellant failed to show that the video contained materially exculpatory evidence or that the state acted in bad faith by failing to preserve the evidence, appellant did not demonstrate that his due process rights were violated. Thus, the trial court did not err by overruling his motion to dismiss.?

Nature of Case: Criminal: assault

Electronic Data Involved: Video surveillance footage

Silver v. Countrywide Home Loans, Inc., No. 11-12282, 2012 WL 2052949 (11th Cir. 2012)

Dec 01 2012

Key Insight: Where defendant?s litigation specialist initially asserted that no responsive emails were uncovered but later testified that she had recently been told of a possible repository of archived emails and that search efforts there were ongoing and already had uncovered several relevant emails, Circuit court found no abuse of discretion in District Court?s refusal to impose an adverse inference which requires a showing of bad faith noting that the litigation specialist?s ?initial lack of knowledge? was ?carelessness at most? and further reasoning that the admission that relevant emails had been discovered was a further indication that the defendant was not acting in bad faith

Nature of Case: Fraud, breach of contract and similar claims related to plaintiff’s mortgage

Electronic Data Involved: Emails

Registe v. State, No. S12A1190, 2012 WL 5381248 (Ga. Nov. 5, 2012)

Dec 01 2012

Key Insight: Court found cell phone provider?s voluntary release of non-content records was supported by good faith belief that there was an ongoing emergency where the company received information from the police that its records could help to identify an ?at-large suspect of a double homicide committed within a day of the request and that the suspect presented a present and immediate danger? and thus the release of records complied with the Stored Communications Act and a motion to suppress was properly denied

Nature of Case: Double murder

Electronic Data Involved: Cell Phone records

Beck v. Test Masters Educ. Servs., Inc., No. 04-1391(JDB), 2012 WL 10817176 (D.D.C. Sep. 25, 2012)

Dec 01 2012

Key Insight: Defendant?s lackluster effort to retrieve e-mail after hard drives crashed constituted a conscious disregard of its preservation obligations that could fairly be described as gross negligence or recklessness, and warranted sanctions in the form of an adverse inference instruction; court declined to impose sanctions for defendant?s failure to preserve telephone recordings since there was insufficient evidence that any relevant calls were actually recorded and should have been preserved

Nature of Case: Consumer Protection Procedures Act claims

Electronic Data Involved: E-mails and telephone call recordings

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