Case Summaries – Page 211 – Electronic Discovery Law

Cook v. Olathe Health Sys., Inc., 2011 WL 346089 (D. Kan. Feb. 2, 2011)

Dec 01 2011

Key Insight: Court denied motion for spoliation sanctions where plaintiff was unable to establish that the relevant hard drives were destroyed after the duty to preserve arose and where plaintiff was unable to establish that the in-car video at issue ever existed or was destroyed after the duty to preserve arose in light of defendants? testimony that because of a ?recorder malfunctioned? no video existed

Nature of Case: Civil claims arising from alleged mistreatment upon arrest

Electronic Data Involved: Four hard drives, officer’s in-car video

Suntrust Mortg., Inc. v. AIG United Guaranty Corp., No. 3:09cv529, 2011 WL 1225989 (E.D. Va. Mar. 29, 2011)

Dec 01 2011

Key Insight: For fraud on the court (attributed to plaintiff as the result of employee?s alteration of emails) and for abuse of the litigation process (resulting from in-house counsel and management?s failure to adequately investigate the existence of other altered emails and subsequent reliance on one such altered email in the filing of their first complaint), court ordered plaintiff to pay attorneys? fees and costs associated with defendant?s sanctions motion but denied the request for additional sanctions, including dismissal, adverse jury instructions, and issue preclusion

Nature of Case: Breach of insurance contract

Electronic Data Involved: Altered emails

Centrifugal Force, Inc. v. Softnet Commc?n, Inc., 783 F. Supp. 2d 736 (S.D.N.Y. 2011)

Dec 01 2011

Key Insight: Court denied motion for sanctions for alleged spoliation of one email where plaintiff failed to establish that the ?destruction of the email was anything but inadvertent or that any other email was deleted? or that the email constituted relevant evidence favorable to the defendants; court?s opinion indicated that defendants? use of oral instruction to preserve evidence was acceptable; court denied motion for sanctions related to defendants? failure to preserve and produce all runtime environments for allegedly infringing software program where defendants took efforts to preserve similar evidence with the belief that such preservation was sufficient and thus did not have a sufficiently capable state of mind to establish spoliation and where plaintiff failed to establish the relevance of the allegedly spoliated evidence to its claims

Nature of Case: Copyright infringement

Electronic Data Involved: Email, computer files related to development of allegedly infringing software

Bower v. Bower, No. 10-10405-NG, 2011 WL 3702086 (D. Mass. Apr. 5, 2011)

Dec 01 2011

Key Insight: Court denied motion to compel Yahoo! and Google to produce emails in violation of Stored Communications Act and declined to rely upon defendant?s ?status as a fugitive? to find that she was deemed to have given consent or to issue an order requiring consent which, if defied, would allow the implication that consent had been given where the court reasoned that ?there is nothing in [defendant?s] actions from which this court can imply an intent to consent to the disclosure of her information

Nature of Case: Child abduction

Electronic Data Involved: Web-based email

Hard Drive Prods., Inc. v. Does 1-30, No. 2:11cv345, 2011 WL 2634166 (E.D. Va. July 1, 2011)

Dec 01 2011

Key Insight: Court granted motion for expedited discovery to issue subpoenas to relevant ISPs seeking information sufficient to identify Doe defendants

Nature of Case: Copyright infringement

Electronic Data Involved: Identifying information from ISP

Lee v. Max Int., LLC, 638 F.3d 1318 (10th Cir. 2011)

Dec 01 2011

Key Insight: Where plaintiff failed to timely produce relevant evidence despite two court orders and then wrongly certified that the production was complete, the district court granted defendant?s motion to dismiss; on appeal, the circuit court affirmed the sanction (in a colorful opinion full of quotable quotes), holding that ?no one . . . should count on more than three chances to make good on a discovery obligation? and that the district court was within its considerable discretion in granting dismissal

Nature of Case: Breach of contract

Electronic Data Involved: Tax records

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

Catagory:Case Summaries