Case Summaries – Page 204 – Electronic Discovery Law

Lowy v. Peacehealth, 247 P.3d 7 (Wash. Ct. App. 2011)

Dec 01 2011

Key Insight: Appellate court reinstated original order compelling defendants? to search its quality assurance database for records pertaining to incidents similar to plaintiff?s and denied defendants? motion for a protective order where RCW 70.41.2003 prevents defendants? from allowing a review of such records by ?outside persons? but where an internal review for the purpose of identifying responsive records would not be in violation of the statute

Nature of Case: Medical malpractice

Electronic Data Involved: Information related to claims similar to plaintiff’s

Miami-Dade Cnty. v. Johnson Controls, Inc., No. 10-20881-CIV, 2011 WL 1548969 (S.D. Fla. Apr. 21, 2011)

Dec 01 2011

Key Insight: Where 3rd party established the burden of responding to defendant?s subpoena, including that compliance would result in a total cost of approximately $118,000, the court ordered defendant to bear the reasonable cost of the 3rd party?s compliance with the subpoena, subject to the conditions set forth by the court

Nature of Case: Breach of contract

Electronic Data Involved: ESI

Surowiec v. Capital Title Agency, Inc., No. CV-09-2153-PHX-DGC, 2011 WL 1671925 (D. Ariz. May 4, 2011)

Dec 01 2011

Key Insight: Highlighting that a party?s duty of preservation is owed to the court and not to a potential plaintiff, court found that defendant was grossly negligent in its failure to issue a litigation hold or take other efforts to ensure preservation of relevant evidence and ordered an adverse inference; court also found that defendant acted ?willfully in failing to timely and adequately respond to the document requests? where defendant?s search terms were not ?calculated to capture? relevant documents and where a court ordered (re)search resulted in production of thousands of documents only three days before the close of discovery and ordered defendant to reimburse plaintiff for expenses incurred as a result of the misconduct and for the reasonable attorney?s fees spent to challenge the misconduct, prepare for additional depositions, and bring the instant motion for sanctions; court?s opinion specifically declined to hold that a lack of written litigation hold was negligence per se

Nature of Case: Breach of contract, breach of fiduciary duty, etc. related to purchase of condominium

Electronic Data Involved: Emails, ESI

Zimmerman v. Weis Markets, Inc., No. CV-09-1535 (C.P. Northumberland May 19, 2011)

Dec 01 2011

Key Insight: Court granted Motion to Compel and ordered plaintiff to provide all passwords, user names and log-in names for any and all MySpace of Facebook accounts

Nature of Case: Claims arising from injury at work

Electronic Data Involved: Social Network

State v. L.D.G., No. 65631-1-I, 2011 WL 2176542 (Wash. Ct. App. June 6, 2011)

Dec 01 2011

Key Insight: Where video of defendant?s alleged assault was sent via email to an investigating officer but was automatically deleted by the email program, where the physical copy was ?faulty? and would not play, and where the original tape was destroyed, the court nonetheless found that defendant?s due process rights were not violated where ?the exculpatory value of the video was not apparent and the State did not act in bad faith?

Nature of Case: Assault (criminal)

Electronic Data Involved: Surveillance video

Berryman-Dages v. City of Gainesvill FL, No. 1:10-cv-00177-MP-GRJ, 2011 WL 2938369 (N.D. Fla. July 20, 2011)

Dec 01 2011

Key Insight: Court granted in part motion to quash subpoena seeking forensic investigation of non-party?s personal computer and ordered the subpoena be modified to allow a forensic investigator to search for the singular piece of evidence at issue and related metadata and to allow the non-party to be present and to bring her own expert to observe during the forensic examination, among other things

Nature of Case: Employment discrimination

Electronic Data Involved: Hard Drive

Estate of Wilson v. Addison, 258 P.3d 410 (Mont. 2011)

Dec 01 2011

Key Insight: Where medical facility destroyed medication records in accordance with its records-retention policy, despite a pending claim, but where the destruction was in not bad faith or an attempt to shield plaintiff from the truth and where there was no showing of prejudice, District Court did not abuse its discretion in denying plaintiff?s request for sanctions

Nature of Case: Medical Malpractice

Electronic Data Involved: Medication Records

Escamilla v. SMS Holdings Corp., No. 09-2120 ADM/JSM, 2011 WL 5025254 (D. Minn. Oct. 21, 2011)

Dec 01 2011

Key Insight: Court affirmed Magistrate Judge?s order requiring defendant to submit his computers for forensic examination, at his own expense, where defendant reinstalled an operating system less than two weeks after plaintiff filed a motion to compel and where, because of the loss of data, plaintiff was therefore prejudiced to an unknown extent?bad faith was not required for such an order; court affirmed order requiring corporate defendant to search hard drives of key employees, the image of a file and print server, and backup tapes dating back five years where the search was not overly broad and where defendant did not establish undue burden?despite its exorbitant estimate regarding backup tapes?in light of the large disparity between estimates from both parties, and where the court noted that much of the costs could have been avoided had SMS fulfilled its preservation duties and not converted to a less accessible format

Nature of Case: Employment litigation – sexual harassment

Electronic Data Involved: ESI

Xyience, Inc. v. Zyen, LLC (In re Xyience), Ch. 11 Case No. BK-S-08-10474-MKN, Adv. No. 09-1402-MKN, 2011 WL 5239666 (Bankr. D. Nev. Oct. 28, 2011)

Dec 01 2011

Key Insight: For ?discovery misconduct? including failing to issue a litigation hold; admitted deletion of documents; and failure to promptly search certain repositories for responsive information, including a computer utilized by an individual defendant at an unrelated corporation for which he was an officer (but which he used for matters unrelated to that corporation, including for correspondence related to the underlying lawsuits) and the computer of the same individual?s secretary (albeit at yet a third company which was also a defendant), the court ordered monetary sanctions ?to reimburse Plaintiff?s expenses costs, and reasonable attorney?s fees?

Nature of Case: Bankruptcy

Electronic Data Involved: ESI

City of Colton v. Amer. Promotional Events, Inc., 277 F.R.D. 578 (C.D. Cal. Oct. 13, 2011)

Dec 01 2011

Key Insight: Affirming the order of the magistrate judge, the Court found that Rule 34 production requirements applied equally to hard copy and ESI, that the Case Management Order did not exempt the parties from the requirements of Rule 34, and that where defendants did not produce ESI as maintained in the usual course of business, they would be required to label their productions to correspond to the categories in the request, or, as offered by plaintiff, could re-produce ESI in native format in lieu of labeling

Nature of Case: CERCLA, RCRA – seeking cleanup costs from owner of property formerly used as ammunition storage

Electronic Data Involved: ESI

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