Case Summaries – Page 206 – Electronic Discovery Law

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

Vieste v. Hill Redwood Dev., No. C-09-0424 JSW (MSR), 2011 WL 2198257 (N.D. Cal. June 6, 2011)

Dec 01 2011

Key Insight: Court ordered defendants to pay sanctions equal to ?reasonable attorneys? fees and costs incurred [by Plaintiffs] in bringing this motion? where defendants were ordered to provide a detailed explanation of their preservation and collection processes but instead submitted declarations which failed to answer basic questions, answered others with minimal information, and relied on conclusory statements; court denied motion for spoliation sanctions where, despite the court?s ?serious concerns? about a certain custodian?s preservation and collection efforts, spoliation was not established, and as to other specific evidence for which the evidence of spoliation was not clear, ordered that if it had not previously been produced, defendants would be barred from its use

Nature of Case: Brach of contract and fraud

Electronic Data Involved: Email, ESI

State v. Pullens, 800 N.W.2d 202 (Neb. 2011)

Dec 01 2011

Key Insight: Court outlined possible ways to authenticate an email and found that the emails at issue were properly authenticated and admitted where some came from an account bearing the defendant?s name, where many were signed by the defendant, where some contained identifying information, including defendant?s social security number and telephone numbers and other personal facts, and where an investigator recalled that at least two of the email addresses contained in the at-issue emails had been used on the computer of the victim, with whom defendant was staying before her death; per the court, possible ways to authenticate an email include: by ?use of the email address, which many times contains the same of the sender;? by ?[t]he signature or name of the sender or recipient in the body of the email;? by evidence ?that an email is a timely response to an earlier message;? and by presentation of the ?contents of the email and other circumstances? which may show authorship

Nature of Case: Murder

Electronic Data Involved: Emails

Diabolic Video Prods., Inc. v. Does 1-2099, No. 10-CV-5865-PSG, 2011 WL 3100404 (N.D. Cal. May 31, 2011)

Dec 01 2011

Key Insight: Court granted motion to serve expedited discovery on Doe #1?s Internet Service Provider seeking information sufficient to identify the Doe for service but severed Does 2-2099 from the case upon finding that they had been improperly joined

Nature of Case: Copyright infringement

Electronic Data Involved: Identifying information for ISP subscribers

Han v. Futurewei Techs., Inc., No. 11-CV-831-JM (JMA), 2011 WL 4344301 (S.D. Cal. Sept. 15, 2011)

Dec 01 2011

Key Insight: Court denied defendant?s motion for an order requiring plaintiff to allow defendant to copy the hard drives of her personal computing devices where the discovery sought was not relevant to any claims or defenses in the case, where defendant proffered no evidence of its suspicions that plaintiff stole proprietary information, and where defendant?s proposed protocol would result in ?needless accessing? of plaintiff?s personal information and would be unduly burdensome to the plaintiff; where plaintiff nonetheless indicated a willingness ?to partake in some kind of protocol to provide [defendant] with the information it seeks? and submitted her own proposed protocol, the court adopted it

Nature of Case: Employment litigation

Electronic Data Involved: Contents of Plaintiff’s personal computing devices

Oce N. Amer., Inc. v, MCS Servs., Inc., No. WMN-10-0984, 2011 WL 6130542 (D. Md. Dec. 7, 2011)

Dec 01 2011

Key Insight: Where an employee of defendant used scrubbing software intended to delete illicit, non-responsive ESI from a lap top subject to court-ordered preservation and in the process also deleted potentially relevant ESI, the court found that such behavior was at least negligent and thus indicated that sanctions were warranted, but reserved judgment on what sanctions would be imposed until the severity of the resulting prejudice could be determined; where a second employee intentionally completed a Windows update that deleted Restore Points from the hard drive (also subject to court-ordered preservation), the court found the spoliation was at least negligent but again withheld imposition of a sanction pending a determination of the prejudice suffered; the court ordered defendants to pay plaintiff?s reasonable expenses in making the motion, including attorney?s fees

Nature of Case: Misappropriation of trade secrets, copyright infringement, etc.

Electronic Data Involved: ESI on employees’ hard drives

LG Elecs. U.S.A., Inc., v. Whirlpool Corp., No. 08 C 0242, 2011 WL 5008425 (N.D. Ill. Oct. 20, 2011)

Dec 01 2011

Key Insight: Regarding recovery of costs for electronic discovery, court acknowledged that it was ?undisputable that electronic discovery costs are available under Section 1920(4)? but that there was ?scant legal authority? providing guidance on the matter and noted that it was difficult for the court to determine the reasonableness of the costs at issue and thus awarded half of the requested costs equaling $35,292.56

Nature of Case: Lanham Act: False Advertising

Electronic Data Involved: Costs

Chevron Corp. v. E-Tech Int., No. 10cv1146-IEG (WMc), 2011 WL 1898908 (S.D. Cal. May 19, 2011)

Dec 01 2011

Key Insight: The court denied defendant’s Motion for Reconsideration of the court?s order allowing forensic examination of the at issue hard drive by a neutral forensic examiner where defendant failed to meet the standard for reconsideration

Electronic Data Involved: Mirror image of hard drive

Catagory:Case Summaries