Case Summaries – Page 207 – Electronic Discovery Law

Tener v. Cremer, 931 N.Y.S.2d 552 (N.Y. App. Div. 2011)

Dec 01 2011

Key Insight: Addressing the obligation of a non-party to produce ESI that was deleted through ?normal business operations?, the court found that the Naussau Guidelines provided the best approach to determine the third party?s obligation to produce allegedly inaccessible data where the guidelines called for a cost/benefit analysis involving the difficulty of the production at issue; court found plaintiff had shown ?good cause? for needing the requested ESI but that there was insufficient evidence of the non-party?s alleged burden of production (including, for example, whether the at-issue ESI had actually been deleted, whether it could actually be retrieved, the cost of such retrieval, etc.) and thus remanded the case to the Supreme Court for ?a hearing on whether the information plaintiff seeks is ?inaccessible? and hence whether [the non-party] has the ability to comply with the subpoena; the appellate court reversed the Supreme Court?s ruling holding the non-party in contempt for failure to comply with a judicial subpoena

Nature of Case: Defamation

Electronic Data Involved: Identity of all persons who accessed the internet using a certain computer or internet portal on a certain day

Gentex Corp. v. Sutter, No. 3:07-CV-1269, 2011 WL 5040893 (M.D. Pa. Oct. 24, 2011)

Dec 01 2011

Key Insight: For defendant?s employees? intentional spoliation, including use of scrubbing software and destruction of CD-ROMS, court imposed default judgment against the employees but declined to impose sanctions on defendant corporation where questions of fact remained as to whether it engaged in spoliation

Nature of Case: Violations of Computer Fraud and Abuse Act and PA Uniform Trade Secrets Act

Electronic Data Involved: ESI

Zhi Chen v. District of Columbia, —F. Supp. 2d.—, 2011 WL 6879746 (D.D.C. Sept. 9, 2011)

Dec 01 2011

Key Insight: Where the general manager of the defendant Red Roof Inn claimed to have attempted to preserve video surveillance footage by asking for it to be copied but alleged that she later discovered that the footage was not copied and that the original footage had been automatically recorded over by that time, the court found, ?based on overwhelming evidence of Red Roof?s cavalier attitude toward its discovery obligations,? that defendant?s spoliation was grossly negligent and ordered an adverse inference and that defendant pay plaintiff?s reasonable attorneys? fees and costs associated with the preparation for the motion for sanctions

Nature of Case: Unlawful detention and related claims

Electronic Data Involved: Surveillance footage

Boucher v. First Am. Title Ins. Co., No. C10-199RAJ, 2011 WL 5299497 (W.D. Wash. Nov. 4, 2011)

Dec 01 2011

Key Insight: Following discussion of the breadth of original requests and subsequent narrowing of scope, court addressed duty of defendant to produce evidence from third-party who provided defendant with mortgage-related documents and from independent agents and ordered production from those parties where evidence indicated that at least some agents had contractually agreed to produce documents thus evidencing defendant?s control and where provider of mortgage-documents did not object to disclosure

Nature of Case: Class action

Electronic Data Involved: ESI from third parties

Atlas Resources, Inc. v. Liberty Mut. Ins. Co., No. CIV 09-1113 WJ/KBM, 2011 WL 10563364 (D.N.M. Sept. 8, 2011)

Dec 01 2011

Key Insight: For Defendant?s and counsel?s discovery violations, including delayed production of relevant information, wrongful certification that discovery was complete, producing a 500-page document 35 times, and failing to conduct adequate searches of responsive information, court evaluated the Enrenhaus factors and imposed monetary sanctions to be paid by both Defendant and its counsel; court?s analysis was particularly critical of counsel who the court concluded had ?abdicated its responsibility to exercise oversight of the discovery process? and who the court found to be subject to sanctions pursuant to both Rule 37 and 26

Nature of Case: Claims arising from contract for providing worker?s compensation insurance and claims administration

Electronic Data Involved: ESI

Velocity Press Inc. v. Key Bank, N.A., No. 2:09-CV-520 TS, 2011 WL 1584720 (D. Utah April 26, 2011)

Dec 01 2011

Key Insight: Court denied plaintiff?s motion for sanctions where at-issue emails were deleted prior to when defendant?s duty to preserve attached; court?s analysis included consideration of when duty to preserve arose and found that some communications from plaintiff may have ?hinted at potential claims to certain employees? but did not ?directly threaten litigation? and that the duty to preserve was triggered later, upon receipt of the summons and complaint

Electronic Data Involved: Emails, ESI

Suzlon Energy Ltd. v. Microsoft Corp.,671 F.3d 726(9th Cir. 2011)

Dec 01 2011

Key Insight: In this case, the Ninth Circuit affirmed the decision of the District Court that the Electronic Communications Privacy Act (ECPA) applies to foreign citizens and thus precluded Microsoft Corporation from producing a foreign citizen?s emails, which were stored on its server.

Electronic Data Involved: Emails stored on domestic server

Hudson v. AIH Receivable Mgmt. Servs. LLC, No 10-2287-JAR-KGG, 2011 WL 1402224 (D. Kan. Apr. 13, 2011)

Dec 01 2011

Key Insight: Where defendant, ?a small company with 13 employees? who presented evidence that it was not profitable, objected to discovery pursuant to 26(b)(2)(C)(iii) based on an estimated cost of $2,630 to comply with plaintiff?s request (which included, in part, the cost of necessary software to complete the review), the court declined to shift the cost of production but stated that defendant could choose to produce un-reviewed ESI to plaintiff, thus shifting the cost of software necessary for review, but if defendant wished to review the data first, it would bear the costs of doing so

Nature of Case: Sexual harassment

Electronic Data Involved: ESI

Int?l Med. Group, Inc. v. Walker, No. 1:08-cv-923-JMS-TAB, 2011 WL 1752101 (S.D. Ind. May 9, 2011)

Dec 01 2011

Key Insight: Where relevant evidence found on defendants? hard drive ?challenge[d]? defendants? prior assertions that they had not retained copies of certain communications and defendant Walker?s ?self characterization as a peripheral observer?, the court concluded that Plaintiff had made a prima facie showing of fraud and that defendants therefore waived their attorney-client privilege as to communications with counsel regarding: ?preservation, destruction, or location of documents or discussion of discovery obligations?

Nature of Case: Conspiracy to defame and tortuously interfere with business relationships

Electronic Data Involved: ESI

General Steel Domestic Sales, LLC v. Chumley, No. 10-cv-01398-PAB-KLM, 2011 WL 2415715 (D. Colo. June 15, 2011)

Dec 01 2011

Key Insight: Court denied motion to compel production of plaintiff?s audio calls where plaintiff asserted that defendant?s claims were ?thin? and did not specify any damages and where in light of this, plaintiff asserted that the burden of producing the requested audio recordings outweighed any potential benefit; plaintiff supported its assertions that the audio recordings were ?not reasonably accessible? with affidavits indicating the high volume of calls to review, the need to listen to each call to determine its responsiveness, the incredible time and financial costs of such a review, and the possibility that privileged calls were present in the mix such that a third party could not be relied on to assist

Nature of Case: False and misleading advertising, deceptive sales practices

Electronic Data Involved: Audio recordings of phone calls

Catagory:Case Summaries