Case Summaries – Page 213 – Electronic Discovery Law

United States v. Ohle III, No. S3 08 CR 1109(JSR), 2011 WL 651849 (S.D.N.Y. Feb. 7, 2011)

Dec 01 2011

Key Insight: Court rejected defendants? assertion that government had violated is Brady obligations by producing documents in a database which was ?unduly onerous to access? in light of the large volumes of documents therein where both the government and defendant had equal access to the database and were thus ?just as likely to uncover the purportedly exculpatory evidence? and where, ?as a general rule, the Government is under no duty to direct a defendant to exculpatory evidence within a larger mass of disclosed evidence.?

Nature of Case: Criminal

Electronic Data Involved: Large volumes of documents produced in a database format

Jimena v. UBS AG Bank, Inc., No. 1:07-cv-00367 OWW SKO, 2011 WL 2551413 (E.D. Cal. June 27, 2011)

Dec 01 2011

Key Insight: Court found plaintiff failed to properly authenticate emails allegedly sent to him by Clive Standish pursuant to either Evidence Rule 901(b)(1), permitting authentication through the testimony of a witness with personal knowledge, or Rule 901(b)(4) which allows authentication by appearance, contents, substance, internal patterns, or other distinctive characteristics taken in conjunction with circumstances and, absent admissible evidence to create a triable issue of material fact, granted defendant?s motion for summary judgment

Nature of Case: Fraud

Electronic Data Involved: Emails

Britton v. Wal-Mart Stores East, L.P., No. 4:11cv32-RH/WCS, 2011 WL 3236189 (N.D. Fla. June 8, 2011)

Dec 01 2011

Key Insight: Where defendant?s employee(s) were found to have allowed the loss of relevant video surveillance tape, despite repeated notification of its relevance and requests for preservation, and to have done so intentionally and in bad faith, court declined to enter default judgment but precluded defendant?s presentation of certain defenses and ordered payment of attorney?s costs and fees related to the motion for sanctions and payment of half of such costs and fees related to a prior motion in which defendant?s dishonesty regarding the existence of the at issue vide resulted in costs to the plaintiffs

Nature of Case: Claims arising from alleged wrongful detention of teens for shoplifting

Electronic Data Involved: Video surveillance

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

In re Google Litig., No. C 08-03172 RMW (PSG), 2011 WL 6113000 (N.D. Cal. Dec. 7, 2011)

Dec 01 2011

Key Insight: Where third party objected to plaintiff?s subpoena as overly broad and burdensome but nevertheless undertook a limited search which resulted in the identification of zero documents, but where plaintiff argued the search was halfhearted and that additional searching was required, the court took notice of objective of the recently adopted Model Order on E-Discovery in Patent Cases and indicated its applicability to third parties and thereafter ordered plaintiff to provide the non-party with five search terms to be utilized in additional searching and that plaintiff would bear the costs of any terms beyond the limits agreed to by the parties or granted by the court

Nature of Case: Patent infringement

Electronic Data Involved: ESI

Hansen v. Chevron USA, Inc., No. 2:08-cv-00959-TS-DN, 2011 WL 2149770 (D. Utah May 31, 2011)

Dec 01 2011

Key Insight: Court denied motion to compel forensic imaging of laptop containing responsive information where plaintiff did not elaborate on the ?need? for such imaging but rather just asked for it, where defendant offered to produce the relevant information from the laptop on a thumb drive, and where defendant indicated that the laptop contained both confidential and personal information

Specht v. Google, Inc., No. 09 C 2572, 2011 WL 2565666 (N.D. Ill. June 27, 2011)

Dec 01 2011

Key Insight: Acknowledging that expenses related to imaging and creating electronic versions of documents are taxable when the parties have agreed to produce documents electronically, the court denied defendant?s request for recovery of such funds absent evidence that the parties agreed to electronic production; court denied recovery of expenditure for converting plaintiff?s QuickBooks database into a usable format because such costs are not recoverable

Electronic Data Involved: ESI, QuickBooks database

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

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