Case Summaries – Page 207 – Electronic Discovery Law

Datel Holdings, LTD v. Microsoft Corp., No. C-09-05535 EDL, 2011 WL 866993 (N.D. Cal. Mar. 11, 2011)

Dec 01 2011

Key Insight: Where despite reasonable measures to prevent the production of privileged materials a software glitch resulted in the failure to identify privileged portions of emails that were then produced and where, upon learning of the disclosure, counsel acted promptly to rectify the error, the court found privilege had not been waived by the inadvertent production pursuant to FRE 502; court?s analysis included discussion of meaning of ?inadvertent?

Electronic Data Involved: Email chain

Uhlig LLC v. Shirley, No. 6:08-cv-01208-JMC, 2011 WL 2728445 (D.S.C. July 13, 2011)

Dec 01 2011

Key Insight: Court granted motion to modify imaging protocol and, after indicating its belief that ?the use of hash values eliminates the need for search limitations,? ordered a protocol modification that included an order for the expert to search for hash values to identify documents present on more than one specified computer/device

Electronic Data Involved: Contents of personal computer, storage devices

M-I LLC v. Stelly, No. H-09-1552, 2015 WL 12896025 (S.D. Tex. Nov. 21, 2011)

Dec 01 2011

Key Insight: Court ordered forensic inspection of Defendant?s computers where Plaintiff presented evidence that an individual defendant had transferred confidential information to USB devices and Plaintiff suspected it had then been transferred to Defendant?s computer systems and where Plaintiff produced evidence of Defendant?s practice of deleting documents; court ordered inspection undertaken by an independent expert

Electronic Data Involved: Contents of computers

Harmon v. Lighthouse Capital Funding, Inc. (In re Harmon), 2011 WL 302859 (Bankr. S.D. Tex. Jan. 26, 2011)

Dec 01 2011

Key Insight: Providing a detailed explanation of defendant?s and counsel?s discovery abuses, including failing to search for internal emails, ignoring plaintiff?s subpoena, and counsel?s offering of ?evasive and unfounded testimony in an effort to rationalize his inexcusable non-production? of certain relevant (and repeatedly requested) documents, among other things, the court denied defendant?s motion for reconsideration and upheld as a sanction the establishment of a particular fact in plaintiff?s favor, namely that Lighthouse did not establish an escrow account in accord with its obligations under its agreement with plaintiffs

Nature of Case: Adversary proceeding in bankruptcy

Electronic Data Involved: Emails, bank statements

U.S. Holdings, Inc. v. Suntrust Bank, No. 09-23222-CIV, 2011 WL 1102822 (S.D. Fla. Mar. 23, 2011)

Dec 01 2011

Key Insight: Where Bates labeling documents already produced in native format would have required defendants to convert the documents to an alternative format and would have cost between $16,000 and $75,000, the court denied plaintiff?s motion to compel Bates labeling, despite the requirement to do so as laid out in the Discovery Practices Handbook appended to the local rules in the Southern District of Florida

Nature of Case: Breach of fiduciary duty, negligence, fraud in the inducement, etc.

Electronic Data Involved: ESI in native format

Ingersoll v. Farmland Foods, Inc., No. 10-6046-CV-SJ-FJG, 2011 WL 1131129 (W.D. Mo. Mar. 28, 2011)

Dec 01 2011

Key Insight: Court denied plaintiff?s motion to compel defendant?s production of its litigation hold where such letters are generally not discoverable absent evidence of spoliation; resolving dispute related to how to initially proceed with discovery of ESI, court approved defendant?s proposal to utilize search terms for the identification of potentially responsive information and to sample those results to determine the success of the terms; court also ordered that plaintiff be provided access to the search term ?hits? so that ?both sides may have an opportunity to determine the efficacy of the sampling.?

Nature of Case: Employment claims related to payment for ?donning and doffing?

Electronic Data Involved: ESI

Brokaw v. Davol, Inc., Nos. PC 07-5058, PC 07-4048, PC 07-1706, 2011 WL 579039 (R.I. Super. Ct. Feb. 15, 2011)

Dec 01 2011

Key Insight: Court found backup tapes not reasonably accessible in light of the cost of restoration, review and production but granted plaintiff?s motion to compel where plaintiff?s showed ?good cause for some discovery? and held the motion in abeyance until further argument on cost-shifting

Nature of Case: Products liability

Electronic Data Involved: Backup tapes

S.E.C. v. Brewer, No. 10 C 6932, 2011 WL 3584800 (N.D. Ill. Aug. 15, 2011)

Dec 01 2011

Key Insight: Court held defendants in contempt for failing to preserve documents in compliance with a court order; reasoning that because documents had been destroyed, no monetary sanction would coerce their production, the court ordered that defendants pay the reasonable costs associated with the government having to bring and prosecute the motion

Nature of Case: SEC litigation

Electronic Data Involved: ESI

Greater Lakes Ambulatory Surgical Ctr., PLLC v. State Farm Mut. Ins. Co., No. 11-11003, 2011 WL 5245141 (E.D. Mich. Nov. 3, 2011)

Dec 01 2011

Key Insight: Where defendant indicated that the requested records were not readily searchable because the information sought was not tracked, that compliance with plaintiffs? request would require manual review of ?hundreds of thousands of claims,? that the claim files were not stored as searchable images, and that the cost of reviewing the claim files could eclipse $100,000, the court concluded that defendant had demonstrated undue burden and denied plaintiffs? motion to compel; court also indicated that plaintiffs could have pursued alternative avenues of discovery where defendant indicated that a third party maintained the information requested but failed to do so and that defendant should not be ?required to engage in labor and resource intensive discovery . . . merely because Plaintiff?s failed to subpoena a third-party . . . .?

Nature of Case: Suit arising from Defendant’s refusal to pay certain charges for services provided to insured

Electronic Data Involved: ESI

In re Nat?l Assoc. of Music Merchs., Musical Instruments & Equip. Antitrust Litig., MDL No. 2121, 2011 WL 6372826 (S.D. Cal. Dec. 19, 2011)

Dec 01 2011

Key Insight: Court denied motion to compel defendant to re-run searches using commonly used acronyms where defendant had already run search terms that had been agreed upon by the parties and plaintiff had ample opportunity to ask for the abbreviations to be used and where the court determined that he burden of re-searching outweighed the benefit; where plaintiff was willing to bear the cost of ?running the searches and conducting the review in their request,? however, court would permit further search of specified custodians for one specifically identified acronym

Nature of Case: Antitrust

Electronic Data Involved: ESI

Catagory:Case Summaries