Case Summaries – Page 209 – Electronic Discovery Law

Alers v. City of Philadelphia, No. 08-4745, 2011 WL 6000602 (E.D. Pa. Nov. 29, 2011)

Dec 01 2011

Key Insight: Where defendants inadvertently produced a privileged memorandum as part of a multi-page document amid more than 2000 pages of document production and where they requested return of the document four days after learning of its disclosure at a deposition (where there was no objection made), the court found that privilege was not waived (despite defendants? choice to attach the memorandum to a publically available motion)

Electronic Data Involved: Inadvertently produced memorandum

Makeen v. Comcast of Colo. X, LLC, 2011 WL 93728 (D. Colo. Jan. 11, 2011)

Dec 01 2011

Key Insight: Court denied motion for sanctions for defendant?s loss of server logs where the court determined that the logs were of minimal relevance to plaintiff?s claims and where the logs ?rolled over? in the usual course of business prior to the trigger of defendant?s duty to preserve

Nature of Case: Violation of FMLA and ADA, employment discrimination, intentional infliction of emotional distress

Electronic Data Involved: Server logs

Apelbaum v. Networked Insights, Inc., 2011 WL 286125 (W.D. Wis. Jan. 27, 2011)

Dec 01 2011

Key Insight: Court declined to impose sanctions for plaintiff?s failure to disable software set to automatically erase and write-over internet-related files whenever the browser closed where plaintiff asserted that he installed such software as a regular practice on all of his computers and where because of the automatic nature of the software, evidence was lost well before plaintiff filed his suit or defendant filed its countersuit; defendant would be allowed to present additional evidence of spoliation at trial and the court indicated its willingness to reconsider sanctions upon a showing that more than just internet-related files were deleted

Nature of Case: Breach of contract related to compensation

Electronic Data Involved: Laptop

Diesel Mach., Inc. v. Manitowoc Crane, Inc., No. CIV 09-4087-RAL, 2011 WL 677458 (D.S.D. Feb 16, 2011)

Dec 01 2011

Key Insight: Where parties had an agreement to produce in native format which the court had approved and adopted but later agreed that defendant could produce some information in hard copy (in light of defendant?s representation that hard copy production could be more quickly accomplished prior to pending depositions), the court found the parties agreement to produce in native format was modified and declined to compel re-production citing the burden and expense (including duplication of time and expense of conducting redactions, for example)

Nature of Case: Breach of contract and claims arising from South Dakota Dealer Protection Act

Electronic Data Involved: ESI produced in hard copy

Papadoplos v. Schmidt, Ronca & Kramer, PC, 21 A.3d 1216 (Pa. Super. Ct. 2011)

Dec 01 2011

Key Insight: Appellate court affirmed sanction of dismissal of plaintiffs? claims for spoliation where plaintiff was found to have undertaken ?knowing and willful? spoliation of ?pertinent? evidence resulting in prejudice to the defendant by destroying relevant hard drives

Nature of Case: Legal Malpractice

Electronic Data Involved: ESI, hard drives

United States v. Cameron, 762 F. Supp. 2d 152 (D. Me. 2011)

Dec 01 2011

Key Insight: Images of child pornography produced by ISPs to government were properly authenticated by testimony of ISPs? legal assistants who were familiar with the process for collecting those images and the reliability and accuracy of the servers and who testified that the images offered into evidence were the same as those collected and that the images had been traced to the defendant?s computer; court reasoned that ?[i]t is not necessary for the Government to produce the actual ISP searchers in order to comply with the requirements of the Sixth Amendment?

Nature of Case: Criminal

Electronic Data Involved: Images of child pornography

F.T.C. v. Asia Pac. Telecom, Inc., No. 10 C 3168, 2011 WL 2110220 (N.D. Ill. May 25, 2011)

Dec 01 2011

Key Insight: Court found defendants in contempt and, in the alternative, invoked its inherent authority to sanction where defendants were found to have deactivated a relevant Yahoo! email account in violation of a temporary restraining order which caused the information therein to be permanently lost and where the court found that the deactivation was in bad faith and resulted in prejudice to the plaintiff; court declined to impose default judgment but ordered adverse inferences which substantially eased plaintiff?s ability to establish liability

Nature of Case: Violations of National Do Not Call Registry

Electronic Data Involved: Web based emails

DFSB Kollective Co., Ltd. v. Jenpoo, No. 11-1050 SC, 2011 WL 2314161 (N.D. Cal. June 10, 2011)

Dec 01 2011

Key Insight: Court granted in part motion to conduct expedited discovery for the purpose of identifying alleged copyright infringer(s) and specified the Internet Service Providers to whom subpoenas may be served but declined to allow discovery from entities not sufficiently connected to the allegations or to allow discovery of information related to email addresses not related to the allegations

Nature of Case: Copyright infringement

Electronic Data Involved: Identifying information from Internet Service Providers

State v. Eleck, No. 31581, 2011 WL 3278663 (Conn. App. Ct. Aug. 9, 2011)

Dec 01 2011

Key Insight: Reasoning that ?proving only that a message came from a particular account, without further authenticating evidence, has been held to be inadequate proof of authorship,? appellate court upheld exclusion of Facebook messages at trial where alleged author of the message at issue admitted the message was from her account, but denied authorship of the message and indicated that her account had been hacked; court?s analysis includes extensive discussion of authentication of social networking content

Nature of Case: Criminal

Electronic Data Involved: Facebook message

Osborne LLC v. C.H. Robinson Co., No. 08 C 50165, 2011 WL 5076267 (N.D. Ill. Oct. 25, 2011)

Dec 01 2011

Key Insight: Where defendant ?was late in responding to some of plaintiff?s discovery requests, and failed to respond to Plaintiff?s good faith attempts to open a dialogue about electronic discovery? and where there was evidence that defendant knew what plaintiff was seeking but ?was deliberatively evasive and caused unnecessary delay? (by failing to produce relevant records because plaintiff had not specifically asked for documents containing specific terms, for example) the court indicted that defendant?s actions were not in line with the Federal Rules, the Seventh Circuit?s Pilot Program principles, or the Sedona Principles and ordered payment of certain of plaintiff?s fees and costs; court noted Plaintiff?s contributions to the delays by ?aggressively pursuing motions to compel and for sanctions when there may have been opportunities for more amicable resolutions? and thus declined to impose cost or fees related to duplicative or repetitive motions

Nature of Case: Breach of contract

Electronic Data Involved: ESI

Catagory:Case Summaries