Case Summaries – Page 181 – Electronic Discovery Law

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

Dalcour v. City of Lakewood, No. 11-1117, 2012 WL 3156342 (10th Cir. Aug. 6, 2012)

Dec 01 2012

Key Insight: Reviewing for abuse of discretion circuit court affirmed lower court?s denial of motion for an adverse inference based on loss of TASER records where the evidence indicated the loss resulted from a computer error or possibly negligence and where absent evidence of bad faith, no adverse inference was appropriate; court also recognized that allowing plaintiffs to question witnesses about the missing evidence amounted to a lesser sanction for spoliation

Nature of Case: ? 1983 claims

Electronic Data Involved: TASER records

Short v. Manhattan Apartments, Inc., —F. Supp. 2d—, 2012 WL 4829615 (S.D.N.Y. Oct. 11, 2012)

Dec 01 2012

Key Insight: For failure to produce unredacted database entries despite three court orders to do so, court found that defendant had acted in bad faith to withhold relevant documents and, as a sanction, ordered that facts be established in plaintiffs? favor, namely that the rental listing database included directives from landlords that clients receiving government housing assistance should not be assisted in applying for housing with those landlords; court also ordered defendant to pay Plaintiffs $231,000 in attorneys fees

Nature of Case: Housing discrimination

Electronic Data Involved: Database

Hageman v. Accenture, No. 10-1759 (RHK/TNL), 2012 WL 8993423 (D. Minn. Oct. 19, 2011)

Dec 01 2012

Key Insight: Analyzing a question of control, court ruled that where defendant?s employees could access emails/information stored in a third party?s server ?within his or her normal day-to-day work? then that information was within defendant?s control but that information which was not accessible to the employees was no longer in defendant?s control, and thus properly requested using a Rule 45 subpoena

Nature of Case: Employment discrimination

Electronic Data Involved: ESI/emails stored on third party server

Adkins v. EQT Prod. Co., No. 1:10cv00041, 2012 WL 5465491 (W.D. Va. May 31, 2012)

Dec 01 2012

Key Insight: Addressing Defendant?s Motion for a Protective Order based on undue burden, court was ?persuaded? that no review was necessary to protect privilege because of the parties? Clawback Order and further found that a reasonable approach in light of Defendant?s assertions of burden (including that processing and review costs could exceed 4 million dollars, as represented by Defendant?s litigation support vendor) was to require Defendant to search and filter its ESI itself (rather than relying on the vendor), with all emails to be designated ?confidential? which would then shift the burden to Plaintiff?s counsel to determine if the ESI produced was over or under inclusive; Court specifically held that ?the court may consider the cost of review of ESI for privileged or responsive information in deciding whether discovery imposes an undue burden or cost on a responding party. Furthermore if the court were inclined to limit discovery based on the burden or cost of the review, I hold that the court could shift the costs of that review, either in whole or in part, to the requesting party.?

Nature of Case: Class action based on alleged entitlement to royalty payments

Electronic Data Involved: Emails, ESI

Blount v. Tate, No. 7:11CV00091, 2012 WL 4341053 (W.D. Va. Aug 24, 2012)

Dec 01 2012

Key Insight: Addressing plaintiff?s allegations of spoliation for defendants? loss of potentially relevant video footage, court declined to impose sanctions because it could not find that defendants had the necessary culpable mind reasoning that 1) defendants? production of other relevant video footage of the same event and another, similar event, contradicted plaintiff?s claims that defendants feared the video would cause them to lose the lawsuit, 2) that ?digital information can be destroyed or hopelessly misplaced in a data base at the touch of a button, without warning or recourse, and the prison?s system for preserving footage included three transition points when a technician?s inadvertent error could have destroyed or misplaced the? relevant footage, and 3) that the footage of the incident involving the plaintiff was not the only footage lost, suggesting that ?the event causing that loss was not intended to harm [Plaintiff?s] case?

Nature of Case: Eight Amendment violations, excessive force

Electronic Data Involved: Camcorder footage

Country Vintner of North Carolina, LLC v. E&J Gallo Winery, Inc., No. 5:09-CV-326-BR, 2012 WL 3202677 (E.D.N.C. Aug. 3, 2012)

Dec 01 2012

Key Insight: Addressing Defendant?s efforts to recover costs related to ?technical, specialized services that were needed in order to ?collect, process, preserve, track, copy to digital format, and ultimately produce? the large amount of electronically stored information (?ESI?) that was utilized in the discovery process in this case,? the court adopted the Third Circuit?s reasoning in Race Tires America, Inc. v. Hoosier Racing Tire Corp and thus determined that ?a prevailing party may recover costs associated with copying or duplicating its files, but it may not receive reimbursement for any other ESI-related expenses?; in the present case the court found that ?the only tasks that involve copying are the conversion of native files to TIFF and PDF formats and the transfer of files onto CDs?

Nature of Case: Unfair and deceptive trade practices

Electronic Data Involved: ESI taxable costs

Catagory:Case Summaries