Case Summaries – Page 190 – Electronic Discovery Law

Winchell v. Lopiccolo, —N.Y.S.2d—, 2012 WL 5933033 (N.Y. Sup. Ct. Oct. 19, 2012)

Dec 01 2012

Key Insight: Where Plaintiff alleged brain trauma and impaired cognitive functioning and Defendants therefore sought unfettered access to Plaintiff?s Facebook page ?for the purpose of discovering what it reveals about Plaintiff?s ?ability to portray cognitive function?? (Defendants asserted that even the layout of the page would demonstrate cognitive function), the court denied the motion upon finding the request was overbroad

Nature of Case: Claims related to injuries resulting from auto accident

Electronic Data Involved: Social Network contents (Facebook)

Tabon v. Univ. of Pennsylvania Health Sys. No. 10-cv-2781, 2012 WL 2953216 (E.D. Pa. July 20, 2012)

Dec 01 2012

Key Insight: Court declined to impose spoliation sanctions absent evidence of bad faith

Nature of Case: Employment Discrimination

Electronic Data Involved: Investigation file, original medical records, “comments section” of medical records from computer system

Am. Builders & Contractors Supply Co., Inc. v. Roofers Mart, Inc., No. 1:11-CV-19 (CEJ), 2012 WL 2992627 (E.D. Mo. July 20, 2012)

Dec 01 2012

Key Insight: Where Defendant reinstalled the operating system on his personal laptop two days after his first deposition (where he was informed a request for ESI would be forthcoming) claiming that he did so to ensure that he did not possess Plaintiff?s proprietary information, and where Defendant had previously deleted the information on a relevant flash drive, the court found Defendant had acted intentionally and that Plaintiff had been prejudiced by the loss and ordered an adverse inference allowing, but not requiring, the jury to infer that the deleted information was unfavorable to Defendant and also ordered Defendant to pay Plaintiff?s attorneys? fees and costs connected with bringing the motion for sanctions; court acknowledged applicability of agency law in determining whether to impose sanctions against a party for spoliation by its employees but declined to do so in the present case

Nature of Case: Breach of non-compete, misappropriation of trade secrets

Electronic Data Involved: ESI

Chura v. Delmar Gardens of Lenexa, Inc., No. 11-2090-CM-DJW, 2012 WL 940270 (D. Kan. Mar. 20, 2012)

Dec 01 2012

Key Insight: Court found that ?Defendant?s failure to produce any ESI, such as emails, attachments, exhibits, and word processing documents raise[d] justifiable concerns that Defendant may have 1) failed to preserve relevant evidence, or 2) failed to conduct a reasonable search for ESI responsive to Plaintiff?s discovery requests? and thus scheduled an evidentiary hearing and ordered Defendant to be prepared to present evidence on its preservation and search efforts (specific topics identified in court?s order)

Nature of Case: Employment discrimination

Electronic Data Involved: Miscellaneous ESI

In re Subpoena to Creeden & Assocs., No. 12C 5573, 2012 WL 4580841 (N.D. Ill. Sept. 28, 2012)

Dec 01 2012

Key Insight: Addressing plaintiff?s motion to enforce a subpoena, the court focused on the issue of the burden to the third party and granted plaintiff?s motion as to the requests for production with some limitations and also conducted an 8-part cost shifting analysis which resulted in the court?s order that plaintiff was to bear 60 of the third party?s ?staff research and production costs? and 30 of the third party?s ?legal costs?; court indicated that the ?lower legal percentage [was] a reflection of what the Court believe[d] was [the third-party?s] recalcitrance to meaningfully participate in legal negotiations concerning discovery thus far? and that ?[t]he lower legal fee-shifting amount is also an attempt to get [the third party] to object only to those points it really cares about?

Nature of Case: Antitrust

Danny Lynn Elec. V. Veolia Es Solid Waste, No. 2:09CV192-MHT, 2012 WL 786843 (M.D. Ala. Mar. 9, 2012)

Dec 01 2012

Key Insight: Court denied motion for spoliation sanctions where it was unclear that any spoliation had even occurred in light of defendants? backup system, where the court concluded that defendants had not acted in bad faith (but had instead ?expended great effort to insure that plaintiffs receive information from both their live and archived email system ??), and where the degree of prejudice was minimal (assuming spoliation occurred) in light of the significant other discovery that was produced

Electronic Data Involved: Email

Vietnam Veterans of Am. v. Central Intelligence Agency, No. 09-cv-0037 CW (JSC), 2012 WL 2375490 (N.D. Cal. June 22, 2012)

Dec 01 2012

Key Insight: In dispute over 24 40-year old magnetic tapes, 6 of which defendants had attempted to restore with only partial success (contents of 2 of the 6 tapes were recovered), the court found the information on the tapes to be not reasonably accessible in light of the significant but only partially successful recovery efforts but, recognizing the potential relevance of the contents, ordered that plaintiff would be allowed to attempt recovery (using outside vendors with sufficient security clearance) at their own expense and that if recovery was successful, the court would consider a cost-shifting motion

Electronic Data Involved: 40-year old magnetic tapes

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

Catagory:Case Summaries