Case Summaries – Page 185 – Electronic Discovery Law

Musket Corp. v. Star Fuel of Okla., No. CIV-11-444-M, 2012 WL 3986344 (W.D. Okla. Sept. 11, 2012); No. CIV-11-444-M, 2012 WL 4363752 (Sept. 21, 2012)

Dec 01 2012

Key Insight: Where independent forensic examiner was tasked with determining whether plaintiff?s data was present on defendant?s laptop and with maintaining an image of defendant?s laptop sealed from inspection, but where plaintiff reserved the right seek discovery and thereafter subpoened the non-party investigator to produce the mirror image of defendant?s laptop, magistrate judge found that rule 45 subpoena was an appropriate discovery method and denied defendant?s motion to quash; on emergency appeal, the District Court noted that allowing direct inspection of a party?s hard drive was not routine, that because of the presence of potentially privileged material, even plaintiff?s expert should not have access to the entire hard drive without allowing defendant?s to object to the production of certain information and that in light of the short time before trial it was ?simply too late?; court noted that this ?predicament? was one plaintiff ?created itself? by waiting to seek access to the hard drive despite knowing for months of the potential that its data was present there

Nature of Case: Misappropriation of trade secrets and related claims

Electronic Data Involved: Hard drive

FTC v. Boehringer Ingelheim Pharmaceuticals, Inc., —F. Supp. 2d—, 2012 WL 4888473 (D.D.C. Oct. 16, 2012)

Dec 01 2012

Key Insight: Where FTC sought to compel defendant to search for and produce responsive ESI on backup tapes, the court resolved the question of what standard must be applied to properly analyze the producing party?s claims of burden (Rule 26(b)(2)(B) ?good cause? to overcome the burden shown by the responding party v. the standard established in FTC v. Texaco Inc., 555 F.2d 862 (DC Cir 1977) ?a showing that compliance with the subpoena ?threatens to unduly disrupt or serious hinder normal operations of a business??) and determined that in light of the narrowed request, the defendant had not established a sufficient burden and thus ordered defendant to conduct a search of the at-issue backup tapes and to produce any non-privileged materials

Nature of Case: Administrative Subpoena

Electronic Data Involved: Backup tapes

Fleisher v. Phoenix Life Ins. Co., No. 11 Civ. 8405 (CM)(JCF), 2012 WL 6732905 (S.D.N.Y. Dec. 27, 2012)

Dec 01 2012

Key Insight: Court addressed Plaintiff?s motion to compel production and declined to shift defendant?s discovery costs where defendant addressed only two of seven factors to be considered when seeking to shift costs but sua sponte entered a 502(d) order to ease defendant?s production burden if they chose to avail themselves of it; court?s analysis made clear that counsel?s resources are not an appropriate consideration in a cost shifting analysis

Nature of Case: Claims arising from insurance company’s alleged improper rate increase

Electronic Data Involved: ESI

King v. Rozek Co., No. 11-cv-01685-CMA-MJW, 2012 WL 2884788 (D. Colo. July 13, 2012)

Dec 01 2012

Key Insight: Where, based on discrepancies in certain witnesses? testimony, Plaintiff believed that relevant investigation notes/computer journal entries were created on a date later than the date alleged by the defendant, and where the creation date was relevant to the issues in the case, the court granted plaintiff?s motion to compel a forensic investigation of the computer on which the evidence was created, but sua sponte issued a protective order that would allow Plaintiff?s forensic investigator to make a mirror image of the at-issue computer but would limit his investigation to the question of when the notes were made or modified and which prohibited the investigator from accessing or viewing information not relevant to that discreet issue

Nature of Case: Employment Discrimination

Electronic Data Involved: Computer hard drive

Scott Process Sys., Inc. v. Mitchell, No. 2012CV00021, 2012 WL 6617363 (Ohio Ct. App. Dec. 17, 2012)

Dec 01 2012

Key Insight: Trial court abused discretion in granting motion to compel forensic imaging of third party?s devices where the record did not present a history of discovery violations or non-compliance sufficient to justify such intrusion and where the court?s order permitted ?unfettered forensic imaging? and contained none of the protections required to conduct forensic analysis (e.g., a neutral third-party examiner, production to counsel for privilege review prior to production to opposing counsel, etc.)

Nature of Case: Violation of non-compete

Electronic Data Involved: Forensic imaging

Spanish Peaks Lodge, LLC v. KeyBank National Assoc., No. 10-453, 2012 WL 895465 (W.D. Pa. Mar. 15, 2012)

Dec 01 2012

Key Insight: Acknowledging the ?flexible and fact-specific? nature of the question of reasonable forseeability, the court addressed several possible triggers for the duty to preserve but ultimately determined that plaintiffs had not demonstrated that the duty to preserve was reasonably foreseeable at the time defendant implemented its document retention policy or that defendant should have reasonably anticipated litigation and therefore denied plaintiffs? motion for spoliation sanctions

Commercial Law Corp., P.C., v. Fed. Deposit Ins. Corp., NO. 10-13275, 2012 WL 137835 (E.D. Mich. Jan. 18, 2012)

Dec 01 2012

Key Insight: Finding metadata related to documents at issue was relevant to the action and that a forensic search of the computers used to generate the documents was ?an appropriate method to locate and extract that information,? but recognizing that at least one of the computers belonged to an attorney, court fashioned a protocol that allowed for forensic examination of the computers while simultaneously protecting potentially privileged information thereon

Electronic Data Involved: Metadata

Adair v. EQT Prod. Co., No. 1:10cv00037, 2012 WL 1965880 (W.D. Va. May 31, 2012)

Dec 01 2012

Key Insight: Considering the burden of production and the court?s ability to relieve it, the court held that consideration of the cost of review alone, related to otherwise accessible data, can be considered in deciding whether discovery imposes an undue burden or cost and may form the basis for a court?s decision to shift costs; court noted in this case, though, that a protective order and clawback agreement combined with a proposal to preclude production of any documents to or from in-house or outside counsel precluded defendant’s need to conduct a expensive privilege review and ordered production in accordance with the court?s order; affirmed with minor modifications 2012 WL 2526982

Electronic Data Involved: Esi

Rudolph v. Beacon Indep. Living, LLC, No. 3:11-CV-617-FDW-DSC, 2012 WL 2804114 (W.D.N.C. July 10, 2012)

Dec 01 2012

Key Insight: Where it was undisputed that Defendant instructed a non-party witness to delete relevant emails on his computer and that the non-party complied, court granted in part plaintiff?s motion for sanctions and ordered that defendant and the non-party preserve all ESI going forward, that defendant and the non-party submit their computers for forensic examination to recover deleted emails and to gather native format versions of information previously produced ?as fixed images,? that defendant pay the cost of the forensic examinations, and that defendant bear plaintiffs? attorneys costs and fees for preparing the underlying motion

Electronic Data Involved: Emails, ESI

In re Oil Spill by the Oil Rig ?Deepwater Horizon? In the Gulf of Mexico, MDL No. 2179, 2012 WL 174645 (E.D. La. Jan. 20. 2012)

Dec 01 2012

Key Insight: Court denied BP?s motion for spoliation sanctions for Halliburton?s alleged loss of information concerning ?post incident cement testing? where BP had not demonstrated prejudice and, upon Halliburton?s representation that the modeling was done on a particular computer that it would submit for third-party forensic examination to determine if the modeling could be located, the court ordered the parties to meet and confer to develop a protocol for examination with costs to be shared equally and reserved BP?s right to seek additional relief

Nature of Case: Claims arising from oil spill

Electronic Data Involved: Computer modeling data/results

Catagory:Case Summaries