Case Summaries – Page 207 – Electronic Discovery Law

E.E.O.C. v. DHL Express, No. 10 C 6139, 2011 WL 6825516 (N.D. Ill. Dec. 28, 2011)

Dec 01 2011

Key Insight: Where DHL produced ?28,000 spreadsheets worth of information? with an index containing metadata for each spreadsheet and any emails to which the spreadsheets were attached but where plaintiff nonetheless claimed that the burden of sifting through the spreadsheets was unduly onerous and sought to compel production of information to identify each spreadsheet and that defendant organize them according to request, the court noted its authority under Rule 34 to impose requirements ?different from those in the rule? and ordered defendant to identify which request each spreadsheet or group of spreadsheets was responsive to and to provide an explanation for spreadsheets not attached to an email

Electronic Data Involved: Spreadsheets

United States v. Halliburton, Co., 272 F.R.D. 235 (D.D.C. 2011)

Dec 01 2011

Key Insight: Court declined to compel defendants to conduct additional searching where defendants established the significant efforts already undertaken to locate and produce responsive materials and where plaintiff made ?no showing whatsoever . . . that those emails not produced will make the existence of some crucial facts more likely than not?, the court concluded that ?the search relator demands cannot possibly be justified when one balances its cost against its utility.?; court went on to establish that the inability to find certain information, despite a duty to preserve, did not negate the ability of a party to rely on Rule 26(b)(2)(C) to argue against additional searching

Nature of Case: Fraud

Electronic Data Involved: Additional searching for ESI

In re Royce Homes, LP, No. 09-32467-H4-7, 2011 WL 873428 (Bankr. S.D. Tex. Mar. 11, 2011)

Dec 01 2011

Key Insight: Court rejected employee of debtor?s assertions of privilege where employee failed to properly assert such privilege in his privilege log; assuming arguendo that emails were privileged, court found that employee had waived privilege in several ways: 1) employee had no reasonable expectation of privacy in communications sent or received on employer?s computer system and thus had no privilege in communications with his attorney; 2) employee provided unqualified access to emails by third parties, one of whom he asked to review his emails to identify which were privileged despite her lack of legal education; and 3) employee allowed trustee to have unqualified access to the emails by failing to object to their production to the trustee when informed that the emails would be produced

Nature of Case: Bankruptcy

Electronic Data Involved: Emails between employee and attorney sent on company computer system

Thermal Design, Inc. v. Guardian Building Prods., Inc., No. 08-C-828, 2011 WL 1527025 (E.D. Wis. Apr. 20, 2011)

Dec 01 2011

Key Insight: Court denied motion to compel searching of all archived email and shared network drives where significant ESI had already been produced; where defendant established that the additional searching would take several months and result in an additional cost of $1.9 million dollars, plus an additional $600,000 to review; and where plaintiffs offered little evidence to justify the burden and argued instead that because defendant was a ?series of large companies with considerable resources,? the burden was not too great; court specifically reasoned ?Courts should not countenance fishing expeditions simply because the party resisting discovery can afford to comply.?

Nature of Case: Breach of contract

Electronic Data Involved: ESI

CNX Gas Co. LLC v. Miller Petroleum, Inc., No. E2009-00226-COA-R3-CV, 2011 WL 1849082 (Tenn. Ct. App. May 11, 2011)

Dec 01 2011

Key Insight: Appellate court affirmed lower court?s order that shifted defendant?s costs related to the production and review of electronic discovery subject to plaintiff?s motion to compel where defendant provided ?specific facts? presented in an affidavit of its IT personnel that demonstrated that the ?electronic documents requested by CNX created an undue burden because those documents required an additional review to prevent the disclosure of privileged information? and where it was within the trial court?s discretion to ?tailor? the discovery requests, including by shifting costs

Nature of Case: Suit arising from dispute related to oil and gas leases

Electronic Data Involved: ESI

State v. McNeil, 708 S.E.2d 590 (Ga. Ct. App. 2011)

Dec 01 2011

Key Insight: Dismissal of trial for destruction of video tape of defendant?s traffic stop was reversed where appellate court concluded the lost tape did not rise to the level of constitutional materiality and was instead ?at best potentially exculpatory? and where there was no evidence that the tape was destroyed in bad faith

Nature of Case: Criminal possession

Electronic Data Involved: Videotape of traffic stop

Couch v. Wan, No. 1:08cv1621 LJO DLB, 2011 WL 2551546 (E.D. Cal. June 24, 2011)

Dec 01 2011

Key Insight: After defendant reported that the estimated cost of searching its electronically stored information using the search terms provided by plaintiff would be ?at least $54,000? because of the need to hire an outside contractor to assist, the court found that the discovery requests imposed a burden on the defendant that warranted cost shifting and ordered the parties to met and confer to determine an appropriate cost sharing agreement; Reconsideration denied in Couch v. Wan, No. CV F 08-1621 LJO DLB, 2011 WL 291118 (E.D. Cal. July 20, 2011)

Nature of Case: Violations of their free speech rights and violations of the Racketeer Influenced Corrupt Organizations Act (“RICO”)

Electronic Data Involved: ESI

Hard Drive Prods., Inc. v. Does 1-69, No. C-11-03004 HRL, 2011 WL 2784578 (N.D. Cal. July 14, 2011)

Dec 01 2011

Key Insight: Court granted motion for expedited discovery allowing plaintiff to serve Rule 45 subpoenas on ISPs to obtain information sufficient to identify Doe defendants

Nature of Case: Copyright infringement

Electronic Data Involved: Names of ISP subscribers

Chen v. LW Restaurant, Inc., No. 10 CV 200 (ARR), 2011 WL 3420433 (E.D.N.Y. Aug. 3, 2011)

Dec 01 2011

Key Insight: Court imposed sanctions, including preclusion of evidence/witnesses, an adverse inference instruction (upon plaintiffs? request) and payment of attorney?s costs and fees for defendant?s discovery violations, including repeated failure to produce evidence despite court orders, and ?loss? of a flash drive and its contents under circumstances which supported a finding of gross negligence or intentional spoliation; court invited plaintiffs to seek sanctions against defense counsel, too, for counsel?s egregious violations of his duties, including failure to issue a litigation hold, failure to be candid regarding the loss of evidence, and failure to ensure compliance with client?s discovery obligations, among others

Nature of Case: Employment litigation (wages)

Electronic Data Involved: Flash drive containing original payroll records for purpose of analyzing metadata

People v. Saibu, D054980, 2011 WL 73314 (Cal. Ct. App. 2011)

Dec 01 2011

Key Insight: Where trial court admitted enhanced digital photos despite prosecution?s failure to disclose that the photograph had been enhanced, or how , but offered defendant an opportunity to remedy the prejudice and locate an opposing expert, appellate court found no abuse of discretion; appellate court found no error in trial court?s failure to require a Kelly hearing with respect to the enhancement techniques where it was ?questionable? whether the Photoshop program used could be considered a scientific technique and where the expert testified that he had been using Photoshop since for 8 years, that it was ?widely available? and ?considered an essential tool? and where an appellate court in Washington had previously determined that the enhancement of latent prints with Photoshop was ?generally accepted in the relevant scientific community?; foundation was properly laid for admission of photos where expert testified as to how they were created and where ?other witnesses? testified that the surveillance video (from which still photos were taken) accurately depicted the events they had witnessed

Nature of Case: Robbery, murder

Electronic Data Involved: Enhanced digital photo

Catagory:Case Summaries