Case Summaries – Page 190 – Electronic Discovery Law

Hudson v. AIH Receivable Mgmt. Servs., No. 10-2287-JAR-KGG, 2012 WL 1194329 (D. Kan. Mar. 14, 2012)

Dec 01 2012

Key Insight: Where employee ?at the heart of Plaintiff?s claims of discrimination and harassment? ?misunderstood the requirements of the litigation hold? and continued his practice of deleting all emails every day but claimed that he never received or erased any emails related to plaintiff?s lawsuit and that all of his sent emails were preserved (as were the emails sent to him from his managers because of their compliance with the litigation hold), court found the deletions were negligent and ordered an instruction that the emails were destroyed and would have been favorable to plaintiff?s case

Nature of Case: Employment litigation

Electronic Data Involved: Email

Special Markets Ins. Consultants, Inc. v. Lynch, No. 11 C 9181, 2012 WL 1565348 (N.D. Ill. May 2, 2012)

Dec 01 2012

Key Insight: Court granted motion to quash third party subpoenas seeking production of defendants? email records, emails, text messages, and other related information (from Yahoo and Verizon) where the court found defendants did have standing to challenge the subpoenas and where the court further found that the subpoenas violated the Stored Communications Act, which does not allow for the production of such information pursuant to civil subpoena

Nature of Case: Breach of employment contract

Electronic Data Involved: Email records and messages; phone records and text messages

Illiana Surgery and Med. Ctr., No. 2:07 cv 3, 2012 WL 2049828 (N.D. Ind. June 5, 2012)

Dec 01 2012

Key Insight: Court granted motion to compel defendant to designate a 30(b)(6) deponent to be deposed regarding defendant?s method of maintaining electronically stored information during the relevant time period where the information was relevant to plaintiff?s claims of bad faith and where defendant had produced requested information in a piecemeal fashion and repeatedly supplemented production, despite previously claiming all relevant information had been produced

Nature of Case: Breach of insurance contract and bad faith

Electronic Data Involved: Deponent to testify regarding document management practices

Estate of Carlock v. Williamson, No. 08-3075, 2012 WL 3878595 (C.D. Ill. Sept. 6, 2012)

Dec 01 2012

Key Insight: Court denied motion for sanctions and for appointment of special master absent evidence that allegedly relevant audio and video were lost in bad faith and where, despite ?concern? over loss of emails resulting from failure to timely suspend automatic deletions, the court ?[did] not find that relevant evidence was destroyed? and further indicated doubt that relevant emails existed; court further found that failure to suspend automatic deletions was merely negligent and not in bad faith; as to unsearched hard drives, court noted that the parties had already expended a large amount of time and money searching for relevant deleted evidence to no avail and that in light of doubts that relevant email ever existed, there was ?nothing to gain by searching those hard drives?

Nature of Case: Death of inmate while incarcerated

Electronic Data Involved: Audio, video, emails, hard drives

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

Catagory:Case Summaries