Case Summaries – Page 189 – Electronic Discovery Law

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”

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

Dunn v. Mercedes Benz of Ft. Washington, Inc., No. 10-1662, 2012 WL 424984 (E.D. Pa. Feb. 10, 2012)

Dec 01 2012

Key Insight: Where, for defendant?s alleged spoliation, plaintiff sought to preclude defendants from asserting a legitimate non-discriminatory reason for her termination which would result in summary judgment in her favor, the court found that defendants had likely breached their duty to preserve ESI but that plaintiff failed to establish bad faith or substantial prejudice and thus denied plaintiff?s motion

Nature of Case: Employment Litigation – Sexual harassment

Electronic Data Involved: Notes maintained on work or home computer

Firestone v. Hawker Beechcraft Int. Serv. Co., No. 10-1404-JWL, 2012 WL 899270 (D. Kan. Mar. 16, 2012)

Dec 01 2012

Key Insight: Court denied defendant?s motion for sanctions resulting from plaintiff?s alleged spoliation of a number of USB devices allegedly attached to plaintiff?s work laptop where defendant failed to establish: 1) that plaintiff was responsible for attaching the devices, 2) that plaintiff removed or copied any proprietary information, or 3) that plaintiff then destroyed the devices while under a duty to preserve them

Nature of Case: Breach of employment contract

Electronic Data Involved: USB devices

Grabenstein v. Arrow Elecs., Inc., No. 10-cv-02348-MSK-KLM, 2012 WL 1388595 (D. Colo. Apr. 23, 2012)

Dec 01 2012

Key Insight: Court declined to impose spoliation sanctions where plaintiff was unable to support her allegation that additional relevant emails existed that were not produced and where, despite a violation of the duty to preserve ?personnel or employment records? pursuant to federal law, the only copies of relevant emails that were proven to exist had been provided to plaintiff and plaintiff provided no evidence that the emails (that were not preserved in violation of federal law) were destroyed in bad faith or other than in the normal course of business

Nature of Case: Employment litigation

Electronic Data Involved: Emails

Genon Mid-Atlantic, LLC v. Stone & Webster, Inc., —F.R.D.—, 2012 WL 1414070 (S.D.N.Y. Apr. 20, 2012)

Dec 01 2012

Key Insight: Magistrate Judge found that plaintiff had ?practical ability? to obtain documents from third-party consultant, and thus ?control? of the documents for purposes of discovery, but declined to impose sanctions, despite finding that plaintiff had failed to issue a litigation hold letter and to ensure that its consultant?s records were being preserved, where investigation revealed that limited responsive documents were recovered from the consultant?s backup tapes and that only one was never produced and thus, plaintiff and its consultant had rebutted the suggestion that defendant was prejudiced; affirmed by District Court 2012 WL 1849101

Nature of Case: claims arising from construction contract

Electronic Data Involved: ESI

Ceglia v. Zuckerberg, No. 10-CV-00569A(F), 2012 WL 95362 (W.D.N.Y. Jan. 10, 2012)

Dec 01 2012

Key Insight: Where plaintiff acted to avoid compliance with court?s order to produce information related to email accounts, including passwords, by repeatedly filing motions to stay discovery and by modifying the consent forms related to the examination of his email accounts to effectively delay the search, despite the court?s denial of his motions to stay discovery, the court ordered civil contempt sanctions and ordered plaintiff to pay $5,000 to the court and also ordered payment of defendants? attorneys? fees and costs related to Defendants? Accelerated Motion to Compel, necessitated by plaintiff?s dilatory behavior

Nature of Case: Breach of contract

Electronic Data Involved: Access to emails (passwords, etc.) for forensic examination

Bruno v. Bozzuto?s, Inc., 850 F. Supp. 2d 462 (M.D. Pa. Feb. 6, 2012)

Dec 01 2012

Key Insight: Where plaintiffs destroyed paper copies of records that were also maintained in electronic format (by a third party) despite anticipation of litigation, court ordered discovery reopened for the purpose of allowing plaintiff to take the necessary action to acquire the electronic records and to provide them to defendant at their own cost and indicated that if the records were no longer in the third party?s possession, the court would ?reconsider its ruling? where the absence of those records would result in a greater degree of prejudice to the defendant

Nature of Case: Breach of contract

Electronic Data Involved: Electronic copies of hard copy records that had been destroyed

Chevron Corp. v. Wienberg Group, No. 11-406 (JMF), 2012 WL 4480697 (D.D.C. Sept. 26, 2012)

Dec 01 2012

Key Insight: Addressing the state of the ?modern privilege log? Judge Grimm noted the strong trend toward mechanically produced privilege logs with boilerplate information which do not sufficiently describe the documents and the nature of the privilege and ordered defendant to produce factual work product and to properly describe the redacted portions and indicated that he would hold defendant to their 26(g) obligations ?ruthlessly?

Nature of Case: Environmental damages

Electronic Data Involved: Privileged/work product ESI

AL Noaimi v. Zaid, No. 11-11560EFM, 2012 WL 4758048 (D. Kan. Oct. 5, 2012)

Dec 01 2012

Key Insight: Court denied plaintiffs? motion to quash defendants? subpoena to one of plaintiffs? email providers where plaintiffs? assertions of breadth and burden were merely conclusory and were unsupported by evidence, where defendants agreed to allow plaintiffs? counsel to review the emails before production to defendants, and where the court?s power to compel the plaintiff to consent to the isp?s production circumvented any problems with the Electronic Communications Privacy Act

Nature of Case: breach of contract, breach of fiduciary duty and related claims

Electronic Data Involved: Emails from internet service provider (ISP)

Catagory:Case Summaries