Case Summaries – Page 211 – Electronic Discovery Law

Tibble v. Edison Int?l, No. CV 07-5359, 2011 WL 3759927 (C.D. Cal. Aug. 22, 2011)

Dec 01 2011

Key Insight: Court addressed defendants? request for ?costs for utilizing the expertise of computer technicians in unearthing the vast amount of computerized data sought by Plaintiffs in discovery? and reasoned that ?[c]ourts have found that costs such as those sought by Defendants are recoverable under ? 1920(4)? and that defendants costs were not incurred for mere convenience but rather were ?necessarily incurred in responding to Plaintiffs? discovery requests? and concluded the costs were reasonable; the court found the request to be moot, however, where defendants sought costs ?only to the extent Plaintiffs receive attorneys fees? and no such fees were awarded

Electronic Data Involved: Taxable costs

Seven Seas Cruises S. DE R.L. v. V. Ships Leisure Sam, 2011 WL 181439 (S.D. Fla. Jan. 19, 2011)

Dec 01 2011

Key Insight: Where plaintiffs challenged the sufficiency of defendants? search, including whether defendants had used the agreed-upon search terms, and the format of defendant?s production, and where plaintiff specifically pointed to an email that should have been produced but was not, the court noted plaintiffs? concession that defendants? search methodology did not result in plaintiff receiving fewer documents and that they had been able to use the information produced, despite their arguments regarding format, but ?nevertheless concluded? that defendants should provide additional information and ordered the submission of an affidavit detailing defendants? search efforts; the court concluded that the dispute in this case was ?caused primarily by the parties? mutual failure to communicate and work together in good faith to resolve the areas of dispute? and counseled that in future the parties should more clearly specify the way in which discovery will be conducted and, if they cannot agree, should seek judicial assistance

Nature of Case: Suit for damages arising from failure to provide proper ship management

Electronic Data Involved: ESI

Peterson v. Seagate, 2011 WL 861488 (D. Minn. Jan 27, 2011)

Dec 01 2011

Key Insight: Where court found that plaintiffs? EEOC claims did not provide sufficient notice of the likelihood of a nationwide class action and where defendant destroyed the ESI of the former employees at issue in accordance with its usual document retention policies, court found that plaintiff had failed to show that information was destroyed in an effort to suppress the truth or that they had suffered any prejudice and declined to order sanctions

Nature of Case: Class action alleging age discrimination in employment

Electronic Data Involved: ESI of former employees

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. Lesser, No. H034189, 2011 WL 193460 (Cal. Ct. App. Jan. 21, 2011)

Dec 01 2011

Key Insight: Appellate court affirmed trial court?s admission of printouts of online chats preserved by a police officer, despite the fact that the version presented at trial contained emoticons that prior versions presented at preliminary examination did not or that introductory lines for the chats were not preserved in the printouts, where the officer ?offered sufficient evidence of the method by which he preserved the text? and where he testified that ?the printouts were accurate and complete? representations of the chats; the printouts were not inadmissible hearsay as argued by defendant because they were not offered for the truth of the matters asserted but rather were offered to show that defendant in fact made the statements

Nature of Case: Attempted distribution of harmful matter to a minor over the internet and related charges

Electronic Data Involved: Instant messages

Catagory:Case Summaries