Case Summaries – Page 187 – Electronic Discovery Law

Oracle Am. v. Google, Inc., No. C 10-03561 WHA, 2012 WL 3822129 (N.D. Cal. Sept. 4, 2012)

Dec 01 2012

Key Insight: Court denied motion for electronic discovery costs pursuant to Fed. R. Civ. P. 54(d) and 28 USC 1920 where Defendant?s bill of costs included many line item descriptions for ?intellectual effort? such as ?analyzing the discovery documents,? preparing for and participating in a ?kickoff call? and other communications with co-workers and vendors

Nature of Case: Patent and Copyright infringement

Electronic Data Involved: Taxable costs related to electronic discovery

St. Louis Produce Mkt. v. Hughes, No. 4:09CV1912 RWS, 2012 WL 4378194 (E.D. Mo. Sept. 25, 2012)

Dec 01 2012

Key Insight: In a case where defendant tried to ?pull a fast one? by altering material terms to a contract and inducing plaintiff to sign it, defendant sought but was repeatedly unable to procure production of defendant?s laptop — which it suspected was used to alter the contract — and when the laptop was produced, it had been substantially damaged. Moreover, evidence indicated that defendant had destroyed relevant cell phone records and emails and that defendant?s counsel made repeated misrepresentations to the court. Thus, the court struck defendant?s pleadings as a sanction.

Nature of Case: Declaratory judgment that contract was invalid because procured by fraud

Electronic Data Involved: Laptop

Pearson Educ., Inc. v. Doe, No. 12 Civ. 4786(BSJ)(KNF), 2012 WL 4832816 (S.D.N.Y. Oct. 1, 2012)

Dec 01 2012

Key Insight: Court denied motion for expedited discovery to Paypal Inc purportedly intended to determine the identity of an alleged copyright infringer where plaintiff failed to sustain their burden of making a clear and specific showing of good cause and sufficient reason why there motion was necessary, including because plaintiff failed to assert that Doe defendant lived in the relevant judicial district, because plaintiff failed to establish that they exhausted traditional avenues of identification and because the subpoena was overly broad, among other reasons

Nature of Case: Copyright infringement

Electronic Data Involved: Identifying information from internet service provider (ISP)

Dokho v. Jablonowski, No. 306082, 2012 WL 5853754 (Mich. Ct. App. Nov. 15, 2012)

Dec 01 2012

Key Insight: Appellate court found that trial court did not err in failing to grant Plaintiff?s request for an adverse presumption for insurance company?s failure to preserve a relevant file that was instead purged pursuant to the company?s document retention policy where Plaintiff provided no evidence of fraudulent conduct or intentional destruction; court further noted that Plaintiff failed to explain how the failure to provide an adverse inference (a lesser sanction than an adverse presumption) altered the court?s ?summary disposition analysis? reasoning that the court was already required to consider the evidence in the light most favorable to the non-moving party

Nature of Case: Claims arising from a slip and fall involving questions related to insurance coverage

Electronic Data Involved: Underwriting file

Lab. Corp. of Am. v. United States, —Fed. Cl.—, 2012 WL 6861487 (Fed. Cl. Dec. 21, 2012)

Dec 01 2012

Key Insight: Where plaintiff sought sanctions for defendant?s automatic purge of contents from a relevant website following closure of bidding process, court found defendant was on notice of obligation to preserve by virtue of Federal Acquisition Regulations requiring preservation of ?all the contract documents associated with procurement,? that the United States had been negligent in failing to preserve the information, and that plaintiff was prejudiced and, focusing on the need to impose the least harsh sanction, ordered that defendant would be prohibited from relying upon any secondary evidence regarding what Plaintiff saw on the relevant website (the question of what Plaintiff saw on the website and therefore what Plaintiff knew was a major issue in the case)

Nature of Case: Pre-award bid protest

Electronic Data Involved: Contents of website used to submit bids

Shutterfly Inc. v. Foreverarts, Inc., No. CR 12-3671 SI, 2012 WL 2911887 (N.D. Cal. July 13, 2012)

Dec 01 2012

Key Insight: Court granted ex parte motion for temporary injunction prohibiting destruction of relevant ESI where plaintiff showed that it was likely to succeed on the merits of the case, that it would suffer irreparable harm absent an injunction if defendants were to destroy evidence, and that the prohibition against destruction of evidence would not burden defendants

Nature of Case: Copyright infringement

Electronic Data Involved: ESI

United States v. Kilpatrick, No. 10-20403, 2012 WL 3236727 (E.D. Mich. Aug. 7, 2012)

Dec 01 2012

Key Insight: Court granted motion in limine to establish authenticity of text messages sent on ?pager devices? citing 1) a sworn declaration of the pager services? custodian of records that the text messages were what they purported to be; 2) distinctive characteristics in the messages, including the displayed unique PIN number; 3) one defendant?s public admission that he and other employees communicated using the at-issue pagers; and 4) the ability of jurors to rely in comparisons with previously authenticated text messages

Nature of Case: Criminal

Electronic Data Involved: Text messages sent using “pager devices”

Thermotek, Inc. v. Orthoflex, Inc., No. 3:11-cv-870-D (BF), 2015 WL 4138722 (N.D. Tex. July 7, 2012)

Dec 01 2012

Key Insight: For Defendants? discovery failures, including gross negligence in the identification and collection of potentially relevant documents (as a result of an individual defendant?s attempts to identify and collect responsive documents himself) and a ?cavalier attitude towards his discovery obligations? (as evidenced by the ?repeated failure? to conduct a proper document collection? and ?lack of candor regarding their document productions,? e.g., failure to indicate that certain produced emails were not ?the actual transmittal communications? that originally accompanied invoices), the court declined to impose severe sanctions absent evidence of bad faith – although the request was denied without prejudice – and ordered Defendants to pay reasonable expenses and fees incurred by Plaintiff that were attributable to Defendants? discovery misconduct, which Plaintiff represented could exceed $100,000

Nature of Case: Breach of contract, breach of warranty, unfair competition, fraud

Electronic Data Involved: ESI, including QUickbooks

Rawal v. United Air Lines Inc., No. 07 C 5561, 2012 WL 581146 (N.D. Ill. Feb. 22, 2012)

Dec 01 2012

Key Insight: Court sustained objections to taxation of costs related to processing email accounts and other files into searchable format where the services were performed by the ?litigation support department? of defendant?s outside counsel and went ?far beyond the mere reproduction or exemplification of documents? and instead comprised the ?kind of work conventionally performed by attorneys and paralegals, the costs of which are not recoverable?

Nature of Case: Discrimination and retaliation

Ohio Valley Environ. Coalition, Inc. v U.S. Army Corps of Eng?gs, No. 1:11MC35, 2012 WL 112325 (N.D. W. Va. Jan. 12, 2012)

Dec 01 2012

Key Insight: Where non-party represented that responding to subpoena would be burdensome in light of need to comb through vast amounts of ESI which had not been organized in anticipation of litigation, court determined such representations constituted ?blanket assertions? but failed to meet the high burden of showing, with particularity, the source and extent of the burden claimed and declined to quash the subpoena for that reason

Electronic Data Involved: Research materials from university professor

Catagory:Case Summaries