Case Summaries – Page 205 – Electronic Discovery Law

Commonwealth v. Koch, 39 A.3d 996 (Pa. Super. Ct. 2011)

Dec 01 2011

Key Insight: Conviction reversed and case remanded where trial court abused its discretion by admitting text messages found on the defendant?s cell phone without providing any evidence to establish that the defendant was the author of the at-issue messages, particularly where several messages referred to the defendant in the third person and ?and thus, were clearly not written by her?; court also found the text messages constituted inadmissible hearsay

Nature of Case: Drug conviction

Electronic Data Involved: Text messages

Aircraft Fueling Sys., Inc. v. Southwest Airlines Co., No. 08-CV-414-GKF-FHM, 2011 WL 4954250 (N.D. Okla. Oct. 18, 2011)

Dec 01 2011

Key Insight: Magistrate Judge denied motion for spoliation sanctions where plaintiff?s possession of some emails that arguably should have been produced by defendant but were not was ?somewhat probative? but fell short of establishing that other relevant emails were created by defendant and then destroyed; upheld on appeal

Electronic Data Involved: Email

Essenter v. Cumberland Farms, Inc., 2011 WL 124505 (N.D.N.Y. Jan. 14, 2011)

Dec 01 2011

Key Insight: Where a store employee attempted to copy the relevant surveillance footage but was unsuccessful and where the failure was not discovered until after the tape had been overwritten, the court found defendant?s loss of the relevant footage was negligent and imposed an adverse inference that the lost footage would have been unfavorable to the defendant

Nature of Case: Slip and fall

Electronic Data Involved: Video

Estate of Carlock v. Williamson, 2011 WL 308608 (C.D. Ill. Jan. 27, 2011)

Dec 01 2011

Key Insight: Court found no waiver of privilege where the email at issue was inadvertently produced (as the result of plaintiff?s access to defendants? servers); where defendants took sufficiently reasonable steps to prevent disclosure as evidenced by the parties? ?repeated discussions about key word limitations? and ?broad protective order? and because ?Defendants repeatedly and specifically emphasized their concern over how Plaintiff was handling any attorney-client communications it came across?; and where defendants acted promptly to rectify the problem upon receiving notice of the inadvertent production. Accordingly, court granted defendant?s motion to strike plaintiff?s motion for sanctions which relied on the privileged email but left open plaintiff?s opportunity to re-file upon removing all reference to the privileged message

Nature of Case: Litigation arising from death of inmate while incarcerated

Electronic Data Involved: Litigation hold spreadsheet, privileged email

Larkin v. Trinity Lighting, Inc., No. 3:10cv109-TSL-MTP, 2011 WL 1496248 (D. Miss. Apr. 20, 2011)

Dec 01 2011

Key Insight: Where questions remained as to whether plaintiff deleted files from his work laptop in bad faith before returning it, whether defendant suffered any prejudice as a result and whether the information sought to be forensically retrieved was likely to be of any substantial benefit, court denied defendant?s motion to compel restoration of the laptop at plaintiff?s expense, but concluded that defendant could retrieve the information at its own costs if it so chose

Nature of Case: Claims alleging failure to pay bonus payment

Electronic Data Involved: ESI

State Farm Mut. Auto. Ins. Co. v. Grafman, 274 F.R.D. 442 (E.D.N.Y. 2011)

Dec 01 2011

Key Insight: For defendants? discovery abuses, including spoliation or withholding of audio tapes of wiretapped conversations despite a court order to produce them; destruction of relevant hard drives and refusal to authorize release of copies of those drives from a third-party; and failure to produce other relevant evidence, court found that plaintiff had been prejudiced and ordered default sanctions

Nature of Case: Claims arising from fraudulent scheme to recover insurance reimbursements

Electronic Data Involved: Audio tapes, hard drives

Jacobeit v. Rich Township H.S. Dist. 227, No. 09 CV 1924, 2011 WL 2039588 (N.D. Ill. May 25, 2011)

Dec 01 2011

Key Insight: For defendant?s delayed production of certain relevant documents, including emails, court granted plaintiff permission to re-depose certain witnesses but denied his request for evidentiary and exclusionary sanctions; court found defendant had breached its duty to preserve when it destroyed an audio tape of school board meeting pursuant to the District?s normal retention policy but that culpability and prejudice were not significant and ordered that plaintiff be allowed to question a certain deponent regarding the meeting, but no other sanctions; court found defendants breached duty of preservation as to certain emails, but that prejudice was minimal, and declined to allow forensic examination of the District?s computers, but ordered that defendants bear the reasonable costs of plaintiff?s motion and reply

Nature of Case: wrongful termination

Electronic Data Involved: Emails, audio tape of board meeting

Greene v. Netsmart Techs., No. CV 08-4971(TCP)(AKT), 2011 WL 2225004 (E.D.N.Y. Feb. 28, 2011)

Dec 01 2011

Key Insight: Where there was a delay in plaintiff?s production of relevant evidence and where handwritten notes and certain audio tapes were negligently destroyed but where no unique evidence was ultimately lost because the information was transferred to another source before its destruction, court declined to dismiss the case or to impose an adverse inference but, noting that there was ?clearly a breakdown in communication between Plaintiff and his counsel regarding document preservation and collection,? imposed monetary sanctions equal to defendant?s expenses related to efforts to obtain the relevant evidence, to be shared 50/50 by plaintiff and his counsel; Recommendation adopted by the District Court: 2011 WL 2193399

Nature of Case: Employment discrimination

Electronic Data Involved: Audio Tapes, handwritten notes

Murphy v. Target Corp., No. 09cv1436-BEN (WMc), 2011 WL 2728217 (S.D. Cal. July 12, 2011)

Dec 01 2011

Key Insight: Where target indicated the requested discovery would require the expenditure of approximately 146 hours of employees? time and cost $4,360 and also argued that the requested discovery would invade employees? privacy and was minimally relevant, court found that the burden to Target did not outweigh the likely benefit, rejected defendant?s arguments regarding privacy and relevance, and granted plaintiff?s motion to compel

Nature of Case: Employment Litigation

Electronic Data Involved: ESI

Tiffany (NJ) LLC v. Andrew, No. 10 Civ. 947 (WHP)(HBP), 276 F.R.D. 143 (S.D.N.Y. 2011)

Dec 01 2011

Key Insight: Undertaking the appropriate comity analysis and finding that only two of seven factors weighed in favor of plaintiffs and that every other favor weighed in favor of the non-party banks, court denied motion to compel production of banking records of non-party Chinese banks

Nature of Case: Trademark infringement

Electronic Data Involved: Banking records

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